ASIC has updated Regulatory Guide 100 Enforceable undertakings (RG 100) by including guidance about independent experts and publicity for enforceable undertakings.

The changes to RG 100 provide new guidance about:

• public reporting by ASIC on compliance with enforceable undertakings, including public summaries of independent expert reports
• criteria for use in assessing the independence of experts, including assessment of conflicts management processes, and
• the circumstances where ASIC will generally seek to appoint an independent expert.

The changes make it clear that ASIC will not enter into an enforceable undertaking on the basis that the terms of the undertaking or parties will be confidential. ASIC’s view is that publicising EU’s serves to promote deterrence and educate consumers and industry.

In cases where an enforceable undertaking requires reporting by an independent expert, ASIC will make available publicly a summary of the final report or a statement that refers to the content of the report on its enforceable undertakings register.

The updated guidance will apply to enforceable undertakings accepted by ASIC from 9 March 2015.

Enforceable undertakings are one of a number of remedies available to ASIC for breaches of the legislation ASIC is responsible for enforcing, including the Corporations Act, the National Credit Act and the ASIC Act. It is an administrative settlement ASIC may accept as an alternative to civil court action or certain other administrative actions.