Offences
- Misleading or deceptive conduct
- False or misleading representations
- False or misleading representations in relation to financial products that involve interests in land
- Cash price to be stated in certain circumstances
- Offering rebates, gifts, prizes etc
- Certain misleading conduct in relation to financial services
- Bait advertising
- Referral selling
- Accepting payment without intending or being able to supply as ordered
- Pyramid selling of financial products
- Unsolicited credit cards and debit cards
- Assertion of right to payment for unsolicited financial services etc.
- Assertion of right to payment for unauthorised advertisements
- Power of Court to prohibit payment or transfer of money or other property
- Examination to take place in private
- Examinee’s lawyer may attend
- Record of examination
- Giving to other persons copies of record
- Copies given subject to conditions
- ASIC may inspect books without charge
- Notice to produce books about affairs of body corporate or registered scheme
- Notice to auditors concerning information and books
- Notice to registered liquidators concerning information and books
- Notice to produce books about financial products
- Notice to produce books about financial services
- Notice to produce documents in person’s possession
- ASIC may authorise persons to require production of books, giving of information etc.
- Powers where books produced or seized
- Powers where books not produced
- Power to require person to identify property of body corporate
- ASIC may give copy of book relating to registered scheme to another person
- ASIC may give information and books in relation to Chapter 5 bodies corporate
- Acquisitions and disposals of financial products
- Acquisitions and disposals of trust property by trustee companies
- Exercise of certain powers of ASIC in relation to financial products
- Exercise of certain powers of ASIC in relation to trust property acquired or disposed of by trustee company
- Disclosures to take place in private
- Lawyer of person making disclosure may attend
- ASIC may cause prosecution to be begun
- Who may be present when hearing takes place in private
- Power to summon witnesses and take evidence
- Contempt of ASIC
- Concealing books relevant to investigation
- Legal professional privilege
- Notification of interests to ASIC
- Confidentiality
- Power to summon witnesses and take evidence
- False evidence
- Contempt of Panel
- Hearings
- Hearings
- Contempt of Disciplinary Board
- Financial Reporting Council’s information gathering powers
- Offences committed partly in and partly out of the jurisdiction
- S.12GB Offences against Subdivision D (Unconscionable conduct and consumer protection in relation to financial services)
- S.12GBCG Civil proceedings after criminal proceedings
- S.12GC Enforcement and recovery of certain fines against Subdivision D (Unconscionable conduct and consumer protection in relation to financial services)
- S.12GI Defences (Unconscionable conduct and consumer protection in relation to financial services)
- 12GLB ASIC Act Punitive orders requiring adverse publicity (Unconscionable conduct and consumer protection in relation to financial services)
- Part 3B Australian Securities and Investments Commission
- ASIC 19 Notice requiring appearance for examination (and the procedure)
- s.68 Australian Securities and Investments Commission
- s.69 Australian Securities and Investments Commission
- s.91 Australian Securities and Investments Commission
- 223 Australian Securities and Investments Commission
- 258 Australian Securities and Investments Commission
s.68 Australian Securities and Investments Commission
|
Act & Section |
s.68 Australian Securities and Investments Commission |
|
Type |
Self-incrimination |
|
Process |
ASIC Compulsory examination |
|
What |
Examination of corporate suspects or witnesses |
|
Observations |
(1) For the purposes of this Part [investigation and evidence gathering], of Division 3 of Part 10 [The Takeovers Panel, panel proceedings], and of Division 2 of Part 11 [Companies Auditors Disciplinary Board, hearings by Disciplinary Board], it is not a reasonable excuse for a person to refuse or fail: (a) to give information; or (b) to sign a record; or (c) to produce a book; in accordance with a requirement made of the person, that the information, signing the record or production of the book, as the case may be, might tend to incriminate the person or make the person liable to a penalty. (2) Subsection (3) applies where: (a) before: i. making an oral statement giving information; or ii. signing a record; pursuant to a requirement made under this Part, Division 3 of Part 10 or Division 2 of Part 11, a person (other than a body corporate) claims that the statement, or signing the record, as the case may be, might tend to incriminate the person or make the person liable to a penalty; and (b) the statement, or signing the record, as the case may be, might in fact tend to incriminate the person or make the person so liable.
(3) The statement, or the fact that the person has signed the record, as the case may be, is not admissible in evidence against the person in: (a) a criminal proceeding; or (b) a proceeding for the imposition of a penalty; other than a proceeding in respect of: (c) in the case of the making of a statement—the falsity of the statement; or (d) in the case of the signing of a record—the falsity of any statement contained in the record. So, what does all this mean: 1. If a person has been required to appear at ASIC for an examination into a matter e.g. the s.19 process, that person must not refuse or fail to answer questions (subject to the ability for legitimate objections to be taken), to sign a record of the examination or produce a book e.g. s.32A process; and
2. Where the answers or signed record, have been provided pursuant to this process, and may tend to incriminate the person; the protection may be invoked. But there is no protection against the contents of a book produced. 3. The statement or the fact of signing a record of the examination is not admissible in a criminal proceeding, or the imposition of a penalty. However, if the statements or signed record are false, the protection is lost and a person may be prosecuted for the falsity of the documents. 4. This means, if a person reads a transcript and finds an error, this error should be pointed out and the record not signed until the error is acknowledged and, preferably, corrected. |