ASIC clarifies litigation approach

17 May 2019

The Australian Securities and Investments Commission (ASIC) has clarified its so-called “why not litigate” approach with its chairman, James Shipton making clear the regulator will likely only litigate if it is in the public interest and it is likely to be successful.

Addressing the annual ASIC Forum, Shipton made clear that ASIC’s approach was very different to a “litigate first” or a “litigate everything” strategy.

“Why not litigate?’ is our own strategic construct and the aim of this is to deter future misconduct and address community expectations that wrongdoing be punished and publicly denounced through the courts,” he said.

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“This means that once:

  • ASIC is satisfied breaches of the law are more likely than not and
  • the facts of the case show pursuing the matter would be in the public interest,
  • then we will actively ask ourselves: why not litigate this matter?” Shipton said.

He said ASIC’s enforcement work had a core focus on deterrence, public denunciation and punishment of wrongdoing by way of litigation.

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