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.