ASIC commissioner Sean Hughes has announced that the corporate regulator will extend what it is calling an ‘immunity marker’ to whistle blowers who alert it to serious white-colllar crime. The markers are intended to protect the whistleblower from both civil and criminal action – but there is a catch. There is only one marker available per criminal event – and the marker goes to whoever alerts ASIC first.
Hughes says that the new marker system would help in ASIC’s fight against contraventions in the financial services sector. The immunity policy enhances ASIC’s ability to identify and take enforcement action against complex markets and financial services contraventions,” he said.
ASIC’s new system is similar to the immunity policy that the ACCC uses to combat cartel activity. The immunity marker will cease to be effective if the whistleblower doesn’t help in any subsequent court action or is found to have coerced others into the criminal activity.
“We recognise that it may be difficult to decide whether a party has behaved in a coercive manner based on the amount of information that you provide when you apply for immunity,” ASIC said. “In some circumstances, we may require you to demonstrate that you have not coerced others into participating in misconduct before conditional immunity is granted.”
Citibank, ANZ and Deutsche Bank are currently being prosecuted for alleged cartel behaviour by ASIC after a tip-off by JP Morgan and its lawyers Gilbert and Tobin. This whistle-blowing activity is exactly the kind of behaviour that ASIC is hoping to encourage.