In this practice area
Acting for organisations and individuals in investigations by Commonwealth and NSW regulators, from the first notice or site visit through to enforcement outcomes and review.
What regulatory investigations cover
Many regulators beyond ASIC and the ACCC have investigative and enforcement powers affecting businesses. Examples include the Australian Prudential Regulation Authority, AUSTRAC, the Fair Work Ombudsman, the Office of the Australian Information Commissioner, the Australian Taxation Office, NSW Fair Trading, the NSW Building Commission, the Environment Protection Authority and professional and licensing bodies.
Investigations may relate to licensing, anti-money laundering, workplace entitlements, privacy and data breaches, building defects, environmental harm, or professional conduct. The same event can attract several regulators at once.
The legal framework
Each regulator acts under its own statute, which sets out its powers to require information and documents, enter premises, examine people and seek warrants. Many Commonwealth regulators use the standard monitoring and investigation powers in the Regulatory Powers (Standard Provisions) Act 2014 (Cth), applied by their own legislation.
The outcomes available also differ: warnings, directions, compliance or improvement notices, infringement notices, enforceable undertakings, licence conditions, suspension or cancellation, civil penalty proceedings and criminal prosecution. Administrative decisions are often reviewable on the merits in the Administrative Review Tribunal for Commonwealth decisions or the NSW Civil and Administrative Tribunal for many NSW decisions, and judicial review is available in the Federal Court or the Supreme Court.
How these matters run
An investigation often starts with a phone call, a letter, a site visit or a notice. The early questions are what power is being used, what must be provided and by when, whether statements are voluntary or compelled, and whether the organisation and its people have different interests.
Documents should be preserved immediately. Internal investigations may be needed to understand the facts, and they should be structured so that privilege is protected where possible. Communications with the regulator should be accurate and consistent. As the investigation matures, there is usually a point at which the regulator's concerns are put and a response can influence the outcome.
How GopherWood Lawyers acts
We identify the power, the deadline and the risk, and set a plan covering document preservation, privilege, internal inquiry and communications. We deal directly with the regulator, prepare responses and attend interviews and examinations.
Where enforcement follows, we negotiate proportionate outcomes or defend proceedings, and we pursue merits or judicial review where a decision is wrong. We also coordinate with insurers and with any parallel civil claims.