ASIC’s Role
The Australian Securities and Investments Commission’s (ASIC) role is to regulate economic activity within Australia, by ensuring compliance with the Australian Securities and Investments Commission Act 2001 (Cth) (Act).
In order to achieve this, ASIC has significant general powers of investigations. Investigations may be undertaken by ASIC where there is reason to suspect that a contravention of a relevant law or regulation, has been committed.
ASIC’s Power of Investigation
ASIC has extensive investigation powers to ensure that it can fulfill its role efficiently and thoroughly. ASIC will hear evidence from individuals in two circumstances:
- Where participants are compelled to attend a formal interview after being issued with a “Notice to Appear for Examination” (Notice) under section 19 of the Act. A Notice may be issued if ASIC believes on reasonable grounds that the individual can provide reasonable assistance with its investigation. It requires the individual answer questions under oath to a specified member of staff. It is an offence to refuse or fail to give the requested information, even where it may result in self-incrimination.[1] However, statutory protection is provided insofar as the interview transcript cannot be used in criminal or penalty proceedings against the interviewee.[2]
- Where participants agree to a formal voluntary interview to aid the investigation. This type of interview is sometimes referred to as a ‘record of interview’.
Key Difference between Compulsory and Voluntary Interviews
The key difference is the existence of a statutory privilege against self-incrimination for compulsory interviews, but not for voluntary interviews.
Ordinarily, the privilege that applies against self-incrimination provides that if, during the course of the interview, an individual makes a statement that could implicate them, that admission cannot be used against them in a future legal proceeding. To successfully invoke this privilege, an individual must state that they are seeking to invoke the privilege, usually by stating “privilege” before giving an answer, on the grounds of potentially giving a self-incriminating answer.[3] It is necessary for this statement to be made, prior to giving any self-incriminating answers. An individual can always decline to answer questions or produce documents/ evidence in circumstances where doing so would expose them to a conviction of a crime.
In the context of ASIC proceedings and investigations, the statutory protection against self-incrimination under the Act does not extend to voluntary interviews , so any statement made during a voluntary interview can be used in subsequent hearings or legal proceedings. Parliament considers that this privilege can be an obstacle to efficiency, and prioritises expedient exposure of wrong-doings to prevent harm to the public.
Key Takeaways
ASIC seeks to encourage people to aid it’s investigations in any manner they can, such as attending voluntary interviews.
It is important to remember that when attending a voluntary interview, there is no protection of privilege from any statements that you make during the interview. Voluntary information provided is not protected by privilege, and this may result in further investigation .
If you require our assistance, or have any queries about ASIC, please contact Aaron or Elizabeth on (08) 6188 3340, aaron@pragma.law or elizabeth@pragma.law.
[1] Australian Securities and Investments Commission Act 2001 (Cth), s 68(1).
[2] Self-incrimination privilege can only be applied to individuals, and does not extend to corporations: see Corporations Act 2001 (Cth) s 1316A for criminal proceedings; Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR543, [31] (Gleeson CJ, Gaudron, Gummow and Hayne JJ); Evidence Act 1906 (WA) s 11; and Evidence Act 1995 (Cth) s 187.
[3] Australian Securities and Investments Commission Act 2001 (Cth), s 68(2).
