In this practice area
Preparing and representing people required to attend ASIC section 19 examinations, including privilege claims, the scope of questioning and the use later made of the transcript.
What a section 19 examination is
Section 19 of the ASIC Act 2001 (Cth) allows ASIC, by written notice in the prescribed form, to require a person it suspects or believes on reasonable grounds can give information relevant to an investigation to give reasonable assistance and to appear for examination on oath or affirmation. Directors, officers, employees, advisers, auditors and third parties can all be examined.
The examination is held in private. It is not a court hearing and there is no judge. An ASIC officer, often with ASIC lawyers or counsel, asks the questions, and the proceedings are recorded.
The legal framework
The examinee may be accompanied by a lawyer, who may address the examiner and examine the examinee on matters raised, within limits set by the ASIC Act. ASIC may give directions about who else may be present. The examinee is entitled to a copy of the record in some circumstances, although ASIC may restrict its use.
Under section 68, self-incrimination is not an excuse for refusing to answer. However, if an individual claims before answering that the answer might tend to incriminate them or make them liable to a penalty, the answer is generally not admissible against them in criminal proceedings or proceedings for a penalty, other than proceedings about the falsity of the answer. The immunity is a use immunity only and does not extend to derivative use. Legal professional privilege is protected under section 69. Giving false or misleading evidence and failing to attend or answer are offences.
How these examinations run
Preparation matters more than anything that happens in the room. The examinee should understand the notice, the likely subject matter, the documents ASIC holds and the way questions are usually framed. The examination typically starts with formalities, the oath and privilege claims, and then proceeds through background, documents and the events under investigation.
Examinations can run for a day or several days. Questions may range beyond the examinee's own conduct. After the examination, ASIC may use the record in its investigation, in proceedings against others, and in some circumstances against the examinee. Where proceedings are already on foot, there are important limits on compulsory questioning about the subject of those proceedings, which may need to be raised.
How GopherWood Lawyers acts
We prepare examinees carefully, review documents with them, and explain the process and their rights. We attend the examination, ensure privilege claims are properly made, object where questions go beyond power, and seek clarification of unfair or ambiguous questions.
Afterwards we review the transcript for errors, advise on correcting any mistaken answer, and plan for what may follow.