Probity request procedures for overseas regulators

This is Information Sheet 92 (INFO 92). It gives an overview of the procedures overseas regulators must go through in order to request a probity check from ASIC.

This information sheet covers:

• the circumstance in which a probity check is possible

• the information ASIC will not provide in a probity check, and

• the information publicly available on ASIC’s website.

Overseas regulators are able to request a probity check of a person or entity from ASIC. However, before you make a request you must be aware of the following:

• Requests—your request for a probity check will need to include details of a jurisdictional connection with Australia and a statement of the reasons for the request before we will act on it.

• Information we will or will not provide—you will be assumed to have already obtained information available publicly on our website as this information will not generally be provided as part of our response to a probity check request. We will consider releasing confidential or non-public information in response to a probity check request, and we aim to be transparent about the types of information we do not generally release. We will not generally release information more than five years old unless you, as the overseas regulator, provide us with a good reason for doing so.

Your request—when ASIC is able to conduct a probity check

We have a minimum threshold for content in a probity request. To meet this threshold your request must include:

• information about the jurisdictional connection of the person or entity with Australia, and

• the reason for your request.

Jurisdictional connection with Australia

We generally expect that an overseas regulator making a probity check request about a person or entity will demonstrate why this person or entity has a connection with Australia, for example, that the person has worked in the Australian financial services industry. (Information about this employment—e.g. name of employer/ role, when this employment ceased—would also be helpful.)

Reason for the request

Similarly, we generally expect an overseas regulator to provide a reason for the making of a probity check request, for example a statutory obligation to undertake certain checks (providing details of the relevant sections of the legislation).

An overseas regulator may also seek our assistance if it has a suspicion that an applicant may not have disclosed relevant information in its application for a licence.

Information about the reason for the request may also assist ASIC in identifying information that would be of particular relevance to the overseas regulator.

Types of information that we will not generally provide

Publicly available information

Where information is publicly available on our website

www.asic.gov.au, we will assume that the overseas regulator is already aware of this information. This means that we will no longer routinely provide information that is publicly available on our website as part of the probity check process.

Information on our website can assist an overseas regulator in verifying the claims made by an applicant for a licence or registration. The website can also help establish the probity of the applicant (e.g. register of banned persons). Information contained on our website may be sufficient for your purposes.

What is available on ASIC’s website?

Our website contains a number of free registers which provide, among other things, basic public information about companies and individuals registered or licensed by ASIC. A summary of the registers and information they contain appears in the table below. The information in the table is grouped to indicate what will be most useful in conducting probity checks on different individuals and entities.

Our registers are available for searching at any time on ASIC Connect on our website.

All registers have information available on the types of information retrievable.

There are also ‘Compare free and paid information’ links for some of the registers which allows the user to make an informed decision as to what particular public information they are seeking and whether it needs to be paid for. Certain searches can be purchased online from ASIC Connect or from ASIC-approved information brokers linked to our website.

Please note that we may consider requests from overseas regulators seeking to have fees waived for public information that must be purchased in their particular circumstances. Please email international@asic.gov.au or fax Fax: +61 1300 729 000 and provide full details of your request.

Summary of the information available in ASIC’s online registers and services

For information about:	See the following registers:	What you will find there:
Companies Most useful information:	Organisation & Business names	This lists all Australian corporate and registered business names and some incorporated associations on our registers. It provides the following details about each organisation: registration number; current status; date of deregistration; the suburb that the company’s registered office is located; the complete list of documents lodged by the organisation since 1991 and information regarding jurisdiction.
	Check Name Availability	Use this check before registering an Australian company in order to ensure intended company names are not identical to other registered companies on the ASIC register.
	Banned & disqualified registers	This lists those people who have been disqualified from involvement in the management of a corporation, under the Corporations Act 2001 (Corporations Act), or banned from practising in the financial services industry. This register details the address of the disqualified or banned person, the time period of the disqualification or banning and for some disqualifications the number of the document that enacted the disqualification or banning.
	Summary of prosecutions of companies & director	This register lists the prosecutions conducted by ASIC of people and companies for a variety of alleged breaches of the Corporations Act. This improves the quality of information provided to the public, assists external administrators to address ongoing misconduct by company officers; discourages the misuse of the ASIC public database and prevents disqualified directors from managing companies.
	Enforceable undertakings register	This lists enforceable undertakings accepted by ASIC. These undertakings are an alternative to civil or administrative action where there has been a contravention of the legislation that ASIC administers. The information that is provided includes: the state in which the undertaking was accepted; the relevant section of the ASIC Act which allow ASIC to accept the undertaking; the names of the parties giving the undertaking; the document number and the date the undertaking was accepted by ASIC. A copy of the enforceable undertaking can be downloaded for free from this register.
Companies Other information available:	Gazettes	The Commonwealth of Australia ASIC Gazette is published weekly and provides information on instruments, notices of variation to an instrument, changes of company type, company de-registrations and company reinstatements. From 1 July 2012, notices about company de-registrations are published on the Published notices website, and not in the ASIC Gazette. The Commonwealth of Australia Business Gazette is published each week and publishes private company notices advertised by companies in accordance with the Commonwealth legislation.
	OFFERlist search	This database provides all the disclosure documents for fundraising offers lodged with ASIC under Chapter 6D of the Corporations Act and some disclosure documents which are required to be lodged under Part 7.9 of the Corporations Act. OFFERlist provides the following information about a disclosure document: a document number; the date a document was received; document type and name; name and Australian Company Number/Australian Business Number (ACN/ABN) of issuer; ASIC office where document was lodged; the first date investments can be made; related documents and information regarding how to obtain a copy of the disclosure document.
	Company alert	This is a function that allows people to establish profiles which monitor companies that they have an interest in. The profile holders are notified by email when the monitored company lodges specific documents with ASIC or any changes to the company structure are made. This is useful for company advisers, lawyers, investors, competitor companies and credit managers.
Financial services Most useful information:	AFS licensees register (see Professional registers)	This register lists all holders of an Australian financial services (AFS) licence. An AFS licence is required if an entity is providing, or intending to provide, financial services. Information provided includes: Name, ABN, Licence No., Address, Start Date, Status of Licence, Trading Name, link to Authorised Representatives and Conditions
	AFS authorised representatives register (see Professional registers)	This register lists all people or companies authorised as representatives by an AFS licensee or by a corporate representative of a licensee. Information provided includes: Name, Representative No., Address, Appointment Dates, Financial services class and Links to licensee information.
	Pre-FSR licensees and authorisations (see Professional registers)	This register provides information about people who were regulated by ASIC under the old licensing regime that ended in 2004. Under that old regime, financial service providers could be registered as Securities Representatives, Futures Representative, Investment Advisers, Insurance Brokers, Securities Dealers, Futures Advisers and/or Futures Brokers.
Financial services Other information available:	Product disclosure statements (see Organisations & Business Names for a full list of documents lodged)	Under the Corporations Act, responsible people must notify ASIC, using PDS in-use notice, when a copy of the product disclosure statement is first used. The responsible person must retain the Statement for 7 years after the date of the Statement and during that period, must make a copy available to ASIC, if asked, or any person with a reasonable request for it.
	OFFERlist search	See above.
Credit	Credit licensees register (see Professional registers)	This register lists all holders of an Australian Credit Licence. A licence is required if a person or entity is engaged in the provision of credit or credit services. Information provided includes Name, Licence No, Address, Start Date, Licence Conditions, and External Dispute Resolution Scheme membership.
	Credit representative register (see Professional registers)	This register lists all persons authorised to engage in credit activities on behalf of a credit licensee. Information provided includes: Name, Representative No., Address, Commencement and Cessation Dates, Licensee/s Represented.
	Register of unlicensed carried over instrument (COI) lenders	This register lists all unlicensed carried over instrument lenders notified to ASIC, i.e. credit providers or lessors who will not offer new credit contracts or consumer leases, and have opted to comply with the statutory regime rather than apply for a credit licence.
	Register of banned bodies corporate	This register contains all information about banned bodies corporate that are banned from engaging in credit activities by a state or territory or under the National Consumer Credit Protection Act 2009 (National Credit ACT).
	Banned and disqualified persons register	This register lists all persons who have been banned or disqualified under the provisions of the Corporations Act or banned from engaging in credit activities by a state or territory under the National Credit Act.
Auditors and liquidators Most useful information	Auditors and liquidators register (see Professional registers)	This contains details of registered liquidators, official liquidators, registered auditors and authorised audit companies all of whom are registered with ASIC. Specific information includes: registration numbers, names, addresses, dates of registration, and details of any conditions or restrictions imposed upon the registration.
	Enforceable undertakings register	See above.

In addition, you may access the following publicly available information from our website and ASIC’s consumer website, www.moneysmart.gov.au

• ASIC media releases;

• disciplinary actions (criminal, civil, administrative);

• cold-calling warning lists;

• regulatory guides, class orders, fact sheets, information releases and general policy guides, and

• general consumer, creditor and investor information.

Confidential or non-public information

We aim to be transparent about what information we do not generally release. We will not usually release information about:

• complaints made to ASIC where we have assessed the complaint and determined that no regulatory action is required;

• minor technical matters such as a single instance of failure to lodge an annual report on time;

• concluded surveillances which did not raise any material concerns or which resulted in no further action being taken by ASIC, and

• highly confidential and commercially or market sensitive information (e.g. prior knowledge of a takeover bid).

As well as this, we will not normally conduct searches for confidential or non-public information beyond a period of five years. As a general rule, the relevance of information to assessing the probity of an individual or entity decreases over time. There are also questions of fairness to the applicant to be taken into consideration particularly where the information is not current information and the applicant’s subsequent compliance record is sound.

Requests for non-public information

If we do decide to release confidential or non-public information to an overseas regulator in response to a probity check request, we will generally make that release under s127(4)(c) of the Australian Securities and Investments Commission Act 2001 (Cth) (ASIC Act).

Section 127(1) of the ASIC Act requires us to protect from unauthorised disclosure confidential information or information it has obtained in the course of carrying out its functions.

We may release specific types of non-public information subject to ASIC Regulatory Guide 103 Confidentiality and release of information.

We will not advise our overseas counterparts who they should or should not licence or register. We provide information to requesting overseas regulators to help inform their decision-making process.

If you wish to send a submission to ASIC requesting non-public information, please send your request for consideration to: international@asic.gov.au or Fax: +61 1300 729 000

Where can I get more information?

• Go to Australian Financial Security Authority (AFSA) (formerly ITSA): www.afsa.gov.au for insolvency/bankruptcy information on individuals only

• Go to the Australian Prudential Regulation Authority: www.apra.gov.au. for prudential information on financial service providers such as banks, insurance companies, and superannuation funds

• Online inquiry: www.asic.gov.au/question

• Contact ASIC on 1300 300 630

Important notice

Please note that this information sheet is a summary giving you basic information about a particular topic. It does not cover the whole of the relevant law regarding that topic, and it is not a substitute for professional advice. We encourage you to seek your own professional advice to find out how the applicable laws apply to you, as it is your responsibility to determine your obligations.

You should also note that because this information sheet avoids legal language wherever possible, it might include some generalisations about the application of the law. Some provisions of the law referred to have exceptions or important qualifications. In most cases, your particular circumstances must be taken into account when determining how the law applies to you.