Notice requiring appearance for examination (and the procedure)

Act & Section

National Consumer Credit Protection Act s. 253 Notice requiring appearance for examination (and the procedure)

Type

Procedural

Process

Service of a Notice

What

To command the person to attend the offices of ASIC and be examined about topics set out in the Notice.

Observations

The Notice can be provided to Officers, Employees, Clients and others who may be witnesses to specified conduct within the jurisdiction of ASIC, whom ASIC believe on reasonable grounds, can give information relevant to the matter they are investigating.

The person nominated in the notice is to give all reasonable assistance and appear for examination, on oath or affirmation, before specified and authorised staff member.

The examination will take place in private and be audio recorded.

The Notice must state the general nature of the matter (do not expect any specifics or details) plus explain s. 257 of the Act which provides that you may attend with a lawyer, and the lawyer may address the examiner and, when permitted to, ask questions about the matters the examiner has asked about. The Notice must also explain the protection against self-incrimination in s.295.

The examination is compulsory, you must answer questions and provide documents if a further Notice has been issued and served under s.265, 266 and 267.

An ASIC examination is unlike an examination under any other compulsory body. At other bodies a person is asked if they claim what is called “the protection”, which refers to the protection against self-incrimination. If so, the claim is made at the start of the examination and lasts until the end, unless there is a break in which case, the protection will be re-administered.

With ASIC it is imperative the word “privilege” is said prior to answering any questions of an examiner. Failure to say privilege will mean the examinee has waived privilege over self-incrimination. There has even been a case where ASIC attempted to prosecute matters relying on partial answers where the word privilege was said part way into the answer.

There are limited opportunities for a lawyer to object to questions, an experienced lawyer will know how to do this, and importantly, when it can be done. There is one statutory opportunity to object to a question and others at common Law.

An experienced and confident lawyer is crucial to the fair conduct of an examination.

An experienced and confident lawyer may even advise you, depending upon instructions, that a voluntary interview may serve you better in the long run. This is a very contentious and in-depth topic which will depend on the facts of a matter; it goes well beyond the scope of this material. 

If the interview becomes written e.g. it is transcribed, the examinee can be compelled to review and sign. If this occurs, you can request a copy of the document subject to conditions (usually secrecy): s.258.