ASIC investigation powers — section 19 examination and section 33 notices
How ASIC uses section 19 examinations, section 30 notices and section 33 notices under the ASIC Act to investigate suspected contraventions.
ASIC's investigation powers
The Australian Securities and Investments Commission (ASIC) has compulsory information-gathering powers under the ASIC Act 2001 (Cth). These powers are designed to assist ASIC in investigating suspected contraventions of the law.
ASIC’s powers include the ability to conduct compulsory examinations, issue notices to produce documents, and issue notices requiring reasonable assistance. These powers can be exercised as part of an investigation conducted under Part 3 of the ASIC Act.
Information gathered using these powers can generally be used in subsequent civil or criminal proceedings. Division 3 of Part 3 of the ASIC Act provides certain protections regarding the use of this information.
Section 19 examinations
A section 19 examination is a compulsory private examination of a person that the Australian Securities and Investments Commission (ASIC) suspects has information relevant to its investigation. The person is required to attend at a specified time and place to answer questions on oath or affirmation.
Examinations conducted under this power are not public, and ASIC ordinarily keeps the existence of the examination confidential.
The person undergoing examination has limited use immunity under section 68. This means their answers cannot be used directly against them in criminal proceedings if they claim the privilege at the time.
Section 30 and 33 notices
A section 30 notice compels a person to produce specified books or documents at a time and place outlined in the notice. These notices are issued in writing and must state a deadline for compliance.
Section 33 notices require a person to provide all reasonable assistance relating to an investigation. Like section 30 notices, these are issued in writing and specify a time for compliance.
Failure to comply with either a section 30 or section 33 notice without a reasonable excuse constitutes an offence. Penalties for this offence, as outlined in section 63 of the ASIC Act, may include imprisonment for up to 2 years.
Legal professional privilege and self-incrimination
ASIC compulsory notices, including those issued under section 19 and section 33, may be met with a claim of legal professional privilege. This means a person can withhold documents or information if it is subject to that privilege.
The privilege against self-incrimination is not fully applicable. Section 68(1) of the relevant legislation limits the ability of a person to refuse to answer questions based on the grounds that the answer might incriminate them.
However, a person can claim use immunity before providing an answer. If they do so, the answer or information cannot be used in criminal proceedings or proceedings imposing a penalty against them. It is important to note that use immunity does not prevent the use of derivative evidence obtained as a result of the answer.
Frequently asked
Can I have a lawyer present at a section 19 examination?
Yes. The examinee is entitled to be represented by a legal practitioner. The lawyer cannot answer for the examinee but may advise on specific questions and privilege claims.
Does ASIC need to charge anyone before issuing a section 19 notice?
No. The powers can be exercised during the investigation phase, before any decision to commence civil or criminal proceedings is made.