ASIC says it can intervene irrespective of legal breaches
The Australian Securities and Investments Commission (ASIC) believes it can exercise its financial services product intervention power even if there has been no breach of the law.
The regulator’s position is made clear in its draft regulatory guide, released yesterday, and may act as a precursor to future legal challenges in circumstances where it seems to extend beyond the reach of the Corporations Act.
Discussing what might be ASIC’s basis for intervening with respect to a product, the draft guide explains that the regulator will make a product intervention order “if we are satisfied that a product (or class or products) has resulted, will result or is likely to result in significant consumer detriment”.
It then goes on to state: “We can exercise the product intervention power in relation to a product regardless of whether there has been a breach of the law. For example, we could exercise the power even if:
(a) a person has complied with the disclosure requirements in Ch 6D or
Pt 7.9 of the Corporations Act; and
(b) a person has complied with the design and distribution obligations in
Pt 7.8A of the Corporations Act.”
The draft regulatory guide then states that the products covered by the Corporations Act which might be affected include securities, interests in managed investment schemes, derivatives, insurance products, superannuation products and deposit-taking facilities.
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