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Australian Securities and Investments Commission Bill 2001

Part 3 Investigations and information-gathering

Division 1 Investigations

13   General powers of investigation

             (1)  ASIC may make such investigation as it thinks expedient for the due administration of the corporations legislation (other than the excluded provisions) where it has reason to suspect that there may have been committed:

                     (a)  a contravention of the corporations legislation (other than the excluded provisions); or

                     (b)  a contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, being a contravention that:

                              (i)  concerns the management or affairs of a body corporate or managed investment scheme; or

                             (ii)  involves fraud or dishonesty and relates to a body corporate or managed investment scheme or to securities or futures contracts.

             (2)  Where ASIC has reason to suspect that unacceptable circumstances within the meaning of Subdivision B of Division 2 of Part 6.12 of the Corporations Act have, or may have, occurred, ASIC may make such investigation as it thinks expedient:

                     (a)  for the purposes of determining whether or not to make an application under section 657C of that Act; or

                     (b)  otherwise for the due administration of the corporations legislation (other than the excluded provisions).

             (6)  If ASIC has reason to suspect that a contravention of a provision of Division 2 of Part 2 may have been committed, ASIC may make such investigation as it thinks appropriate.

14   Minister may direct investigations

             (1)  Where, in the Minister’s opinion, it is in the public interest in respect of this jurisdiction for a particular matter to which subsection (2) applies to be investigated, he or she may by writing direct ASIC to investigate that matter.

             (2)  This subsection applies to a matter relating to any of the following:

                     (a)  an alleged or suspected contravention of the corporations legislation (other than the excluded provisions);

                     (b)  an alleged or suspected contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, being a contravention that:

                              (i)  concerns the management or affairs of a body corporate; or

                             (ii)  involves fraud or dishonesty and relates to a body corporate, securities or futures contracts;

                     (c)  the affairs, or particular affairs, of a corporation;

                     (d)  dealing in securities;

                     (e)  dealing in futures contracts;

                      (f)  the establishment or conducting of a stock market or futures market;

                     (g)  the provision of clearing house facilities for a futures market;

                      (j)  the giving of advice, analyses or reports about securities or futures contracts.

             (3)  ASIC must comply with a direction under subsection (1).

             (4)  A direction under subsection (1) does not prevent ASIC from delegating a function or power.

15   Investigation after report of receiver or liquidator

                   If a report has been lodged under section 422 or 533 of the Corporations Act, ASIC may investigate a matter to which the report relates for the purpose of determining whether or not a person ought to be prosecuted for an offence against the corporations legislation (other than the excluded provisions).

16   Interim report on investigation

             (1)  Where, in the course of an investigation under this Division, ASIC forms the opinion that:

                     (a)  a serious contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, has been committed; or

                     (b)  to prepare an interim report about the investigation would enable or assist the protection, preservation or prompt recovery of property; or

                     (c)  there is an urgent need for the corporations legislation (other than the excluded provisions) to be amended;

it must prepare an interim report that relates to the investigation and sets out:

                     (d)  if paragraph (a) applies—its findings about the contravention, and the evidence and other material on which those findings are based; or

                     (e)  if paragraph (b) applies—such matters as, in its opinion, will so enable or assist; or

                      (f)  if paragraph (c) applies—its opinion about amendment of that legislation, and its reasons for that opinion;

and such other matters relating to, or arising out of, the investigation as it thinks fit.

             (2)  ASIC may prepare an interim report about an investigation under this Division and must do so if the Minister so directs.

             (3)  A report under subsection (2) must set out such matters relating to, or arising out of, the investigation as ASIC thinks fit or the Minister directs.

17   Final report on investigation

             (1)  At the end of an investigation under section 13 or 15, ASIC may prepare a report about the investigation and must do so if the Minister so directs.

             (2)  At the end of an investigation under section 14, ASIC must prepare a report about the investigation.

             (3)  A report under this section must set out:

                     (a)  ASIC’s findings about the matters investigated; and

                     (b)  the evidence and other material on which those findings are based; and

                     (c)  such other matters relating to, or arising out of, the investigation as ASIC thinks fit or the Minister directs.

18   Distribution of report

             (1)  As soon as practicable after preparing a report under this Division, ASIC must give a copy of the report to the Minister.

             (2)  Where a report, or part of a report, under this Division relates to a serious contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, ASIC may give a copy of the whole or a part of the report to:

                     (a)  the Australian Federal Police; or

                     (b)  the National Crime Authority; or

                     (c)  the Director of Public Prosecutions; or

                     (d)  a prescribed agency.

             (3)  Where a report, or part of a report, under this Division relates to a person’s affairs to a material extent, ASIC may, at the person’s request or of its own motion, give to the person a copy of the report or of part of the report.

             (4)  The Minister may cause the whole or a part of a report under this Division to be printed and published.



 

Division 2 Examination of persons

19   Notice requiring appearance for examination

             (1)  This section applies where ASIC, on reasonable grounds, suspects or believes that a person can give information relevant to a matter that it is investigating, or is to investigate, under Division 1.

             (2)  ASIC may, by written notice in the prescribed form given to the person, require the person:

                     (a)  to give to ASIC all reasonable assistance in connection with the investigation; and

                     (b)  to appear before a specified member or staff member for examination on oath and to answer questions.

             (3)  A notice given under subsection (2) must:

                     (a)  state the general nature of the matter referred to in subsection (1); and

                     (b)  set out the effect of subsection 23(1) and section 68.

20   Proceedings at examination

                   The remaining provisions of this Division apply where, pursuant to a requirement made under section 19 for the purposes of an investigation under Division 1, a person (in this Division called the examinee ) appears before another person (in this Division called the inspector ) for examination.

21   Requirements made of examinee

             (1)  The inspector may examine the examinee on oath or affirmation and may, for that purpose:

                     (a)  require the examinee to either take an oath or make an affirmation; and

                     (b)  administer an oath or affirmation to the examinee.

             (2)  The oath or affirmation to be taken or made by the examinee for the purposes of the examination is an oath or affirmation that the statements that the examinee will make will be true.

             (3)  The inspector may require the examinee to answer a question that is put to the examinee at the examination and is relevant to a matter that ASIC is investigating, or is to investigate, under Division 1.

22   Examination to take place in private

             (1)  The examination must take place in private and the inspector may give directions about who may be present during it, or during a part of it.

             (2)  A person must not be present at the examination unless he or she:

                     (a)  is the inspector, the examinee or a member; or

                     (b)  is a staff member approved by ASIC; or

                     (c)  is entitled to be present by virtue of:

                              (i)  a direction under subsection (1); or

                             (ii)  subsection 23(1).

Penalty:  10 penalty units or imprisonment for 3 months, or both.

23   Examinee’s lawyer may attend

             (1)  The examinee’s lawyer may be present at the examination and may, at such times during it as the inspector determines:

                     (a)  address the inspector; and

                     (b)  examine the examinee;

about matters about which the inspector has examined the examinee.

             (2)  If, in the inspector’s opinion, a person is trying to obstruct the examination by exercising rights under subsection (1), the inspector may require the person to stop addressing the inspector, or examining the examinee, as the case requires.

24   Record of examination

             (1)  The inspector may, and must if the examinee so requests, cause a record to be made of statements made at the examination.

             (2)  If a record made under subsection (1) is in writing or is reduced to writing:

                     (a)  the inspector may require the examinee to read it, or to have it read to him or her, and may require him or her to sign it; and

                     (b)  the inspector must, if requested in writing by the examinee to give to the examinee a copy of the written record, comply with the request without charge but subject to such conditions (if any) as the inspector imposes.

25   Giving to other persons copies of record

             (1)  ASIC may give a copy of a written record of the examination, or such a copy together with a copy of any related book, to a person’s lawyer if the lawyer satisfies ASIC that the person is carrying on, or is contemplating in good faith, a proceeding in respect of a matter to which the examination related.

             (2)  If ASIC gives a copy to a person under subsection (1), the person, or any other person who has possession, custody or control of the copy or a copy of it, must not, except in connection with preparing, beginning or carrying on, or in the course of, a proceeding:

                     (a)  use the copy or a copy of it; or

                     (b)  publish, or communicate to a person, the copy, a copy of it, or any part of the copy’s contents.

Penalty:  10 penalty units or imprisonment for 3 months, or both.

             (3)  ASIC may, subject to such conditions (if any) as it imposes, give to a person a copy of a written record of the examination, or such a copy together with a copy of any related book.

26   Copies given subject to conditions

                   If a copy is given to a person under subsection 24(2) or 25(3) subject to conditions, the person, and any other person who has possession, custody or control of the copy or a copy of it, must comply with the conditions.

Penalty:  10 penalty units or imprisonment for 3 months, or both.

27   Record to accompany report

             (1)  If a report about the investigation referred to in section 20 is prepared under section 17, each record (if any) of the examination must accompany the report.

             (2)  If:

                     (a)  in ASIC’s opinion, a statement made at an examination is relevant to any other investigation under Division 1; and

                     (b)  a record of the statement was made under section 24; and

                     (c)  a report about the other investigation is prepared under section 17;

a copy of the record must accompany the report.



 

Division 3 Inspection of books

28   When certain powers may be exercised

                   A power conferred by this Division (other than sections 29, 35, 36 and 39A) may only be exercised:

                     (a)  for the purposes of the performance or exercise of any of ASIC’s functions and powers under the corporations legislation; or

                     (b)  for the purposes of ensuring compliance with the corporations legislation; or

                     (c)  in relation to:

                              (i)  an alleged or suspected contravention of the corporations legislation; or

                             (ii)  an alleged or suspected contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, being a contravention that concerns the management or affairs of a body corporate, or involves fraud or dishonesty and relates to a body corporate, securities or futures contracts; or

                     (d)  for the purposes of an investigation under Division 1.

29   ASIC may inspect books without charge

             (1)  A book that the corporations legislation (other than the excluded provisions) requires a person to keep must be open for inspection (without charge) by a person authorised in writing by ASIC.

             (2)  A person authorised under this section may require a person in whose possession the book is to make the book available for inspection by the first-mentioned person.

             (3)  An authorisation under this section may be of general application or may be limited by reference to the books to be inspected.

30   Notice to produce books about affairs of body corporate or registered scheme

             (1)  ASIC may give to:

                     (a)  a body corporate that is not an exempt public authority; or

                     (b)  an eligible person in relation to such a body corporate;

a written notice requiring the production to a specified member or staff member, at a specified place and time, of specified books relating to affairs of the body.

             (2)  ASIC may give to:

                     (a)  the responsible entity of a registered scheme; or

                     (b)  an eligible person in relation to the responsible entity;

a written notice requiring the production to a specified member or staff member, at a specified place and time, of specified books relating to the operation of the scheme.

31   Notice to produce books about securities

             (1)  ASIC may give to:

                     (a)  a securities exchange; or

                     (b)  a member of the board of a securities exchange; or

                     (c)  a person who is or has been (either alone or together with any other person or persons) a dealer, an investment adviser or a securities representative of a person; or

                     (d)  a nominee controlled by a person of a kind referred to in paragraph (c) or jointly controlled by 2 or more persons at least one of whom is such a person; or

                     (e)  an eligible person in relation to a person of a kind referred to in paragraph (a), (b), (c) or (d); or

                      (f)  any other person who, in ASIC’s opinion, has been a party to a dealing in securities;

a written notice requiring the production to a specified member or staff member, at a specified place and time, of specified books relating to:

                     (g)  the business or affairs of a securities exchange; or

                     (h)  a dealing in securities; or

                      (j)  advice given, or an analysis or report issued or published, about securities; or

                     (k)  the character or financial position of, or a business carried on by, a person of a kind referred to in paragraph (c) or (d); or

                    (m)  an audit of, or a report of an auditor about, a dealing in securities or accounts or records of a dealer or investment adviser.

             (2)  A reference in subsection (1) to a dealing in securities, or to a business carried on by a person, includes a reference to a dealing in securities by a person as a trustee, or to a business carried on by a person as a trustee, as the case may be.

32   Notice to produce books about futures contracts

             (1)  ASIC may give to:

                     (a)  a futures exchange; or

                     (b)  a clearing house for a futures market; or

                     (c)  a futures association; or

                     (d)  a member of the board of a body corporate that is a futures exchange, a clearing house for a futures market, or a futures association; or

                     (e)  a person who is or has been (either alone or together with any other person or persons) a futures broker, a futures adviser or a futures representative of a person; or

                      (f)  a nominee controlled by a person of a kind referred to in paragraph (e) or jointly controlled by 2 or more persons at least one of whom is such a person; or

                     (g)  an eligible person in relation to a person of a kind referred to in a preceding paragraph; or

                     (h)  any other person who, in ASIC’s opinion, has been a party to a dealing in a futures contract;

a written notice requiring the production to a specified member or staff member, at a specified place and time, of specified books relating to:

                      (j)  the business or affairs of a futures exchange, of a clearing house for a futures market, or of a futures association; or

                     (k)  a dealing in a futures contract; or

                    (m)  advice given, or an analysis or report issued or published, about futures contracts; or

                     (n)  the character or financial position of, or a business carried on by, a person referred to in paragraph (e) or (f); or

                     (p)  an audit of, or a report of an auditor about, a dealing in a futures contract or accounts or records of a futures broker or futures adviser.

             (2)  A reference in subsection (1) to a dealing in a futures contract, or to a business carried on by a person, includes a reference to a dealing in a futures contract by a person as a trustee, or to a business carried on by a person as a trustee, as the case may be.

32A   Notice to produce books about financial services

                   For the purposes of Division 2 of Part 2, ASIC may give to:

                     (a)  a person who supplies, or has supplied, a financial service; or

                     (b)  an eligible person in relation to that person;

a written notice requiring the production to a specified member or staff member, at a specified place and time, of specified books relating to:

                     (c)  the supply of the financial service; or

                     (d)  the financial service.

33   Notice to produce documents in person’s possession

                   ASIC may give to a person a written notice requiring the production to a specified member or staff member, at a specified place and time, of specified books that are in the first-mentioned person’s possession and relate to:

                     (a)  affairs of a body corporate; or

                    (ab)  affairs of a registered scheme; or

                     (b)  a matter referred to in any of paragraphs 31(1)(g) to (m), inclusive, and 32(1)(j) to (p), inclusive; or

                     (c)  a matter referred to in paragraph 32A(c) or (d).

34   ASIC may authorise persons to require production of books

             (1)  ASIC may by writing authorise a member or staff member to make a requirement of a kind that this Division empowers ASIC to make.

             (2)  An authorisation under this section may be of general application or may be limited by reference to either or both of the following:

                     (a)  the persons of whom requirements may be made;

                     (b)  the books production of which may be required.

             (3)  Where an authorisation of a person is in force under this section, the person may make a requirement in accordance with the authorisation as if, in sections 30, 31, 32, 32A and 33:

                     (a)  a reference to ASIC were a reference to the person; and

                     (b)  a reference to specified books were a reference to books that the person specifies, whether in the requirement or not and whether orally or in writing, to the person of whom the requirement is made; and

                     (c)  a reference to production to a specified person were a reference to production to the first-mentioned person.

35   Application for warrant to seize books not produced

             (1)  Where a member or staff member has reasonable grounds to suspect that there are, or may be within the next 3 days, on particular premises in Australia, books:

                     (a)  whose production has been required under this Division; and

                     (b)  that have not been produced in compliance with that requirement;

he or she may:

                     (c)  lay before a magistrate an information on oath setting out those grounds; and

                     (d)  apply for the issue of a warrant to search the premises for those books.

             (2)  On an application under this section, the magistrate may require further information to be given, either orally or by affidavit, in connection with the application.

36   Grant of warrant

             (1)  This section applies where, on an application under section 35, the magistrate is satisfied that there are reasonable grounds to suspect that there are, or may be within the next 3 days, on particular premises, particular books:

                     (a)  whose production has been required under this Division; and

                     (b)  that have not been produced in compliance with that requirement.

             (2)  The magistrate may issue a warrant authorising a member of the Australian Federal Police, whether or not named in the warrant, together with any person so named, with such assistance, and by such force, as is necessary and reasonable:

                     (a)  to enter on or into the premises; and

                     (b)  to search the premises; and

                     (c)  to break open and search anything, whether a fixture or not, in or on the premises; and

                     (d)  to take possession of, or secure against interference, books that appear to be any or all of those books.

             (3)  If the magistrate issues such a warrant, he or she must set out on the information laid before him or her under subsection 35(2) for the purposes of the application:

                     (a)  which of the grounds set out in the information; and

                     (b)  particulars of any other grounds;

he or she has relied on to justify the issue of the warrant.

             (4)  A warrant under this section must:

                     (a)  specify the premises and books referred to in subsection (1); and

                     (b)  state whether entry is authorised to be made at any time of the day or night or only during specified hours; and

                     (c)  state that the warrant ceases to have effect on a specified day that is not more than 7 days after the day of issue of the warrant.

37   Powers where books produced or seized

             (1)  This section applies where:

                     (a)  books are produced to a person under a requirement made under this Division; or

                     (b)  under a warrant issued under section 36, a person:

                              (i)  takes possession of books; or

                             (ii)  secures books against interference; or

                     (c)  by virtue of a previous application of subsection (8) of this section, books are delivered into a person’s possession.

             (2)  If paragraph (1)(a) applies, the person may take possession of any of the books.

             (3)  The person may inspect, and may make copies of, or take extracts from, any of the books.

             (4)  The person may use, or permit the use of, any of the books for the purposes of a proceeding.

             (5)  The person may retain possession of any of the books for so long as is necessary:

                     (a)  for the purposes of exercising a power conferred by this section (other than this subsection and subsection (7)); or

                     (b)  for any of the purposes referred to in paragraphs 28(a), (b) and (d); or

                     (c)  for a decision to be made about whether or not a proceeding to which the books concerned would be relevant should be begun; or

                     (d)  for such a proceeding to be begun and carried on.

             (6)  No-one is entitled, as against the person, to claim a lien on any of the books, but such a lien is not otherwise prejudiced.

             (7)  While the books are in the person’s possession, the person:

                     (a)  must permit another person to inspect at all reasonable times such (if any) of the books as the other person would be entitled to inspect if they were not in the first-mentioned person’s possession; and

                     (b)  may permit another person to inspect any of the books.

             (8)  Unless subparagraph (1)(b)(ii) applies, the person may deliver any of the books into the possession of ASIC or of a person authorised by it to receive them.

             (9)  If paragraph (1)(a) or (b) applies, the person, or a person into whose possession the person delivers any of the books under subsection (8), may require:

                     (a)  if paragraph (1)(a) applies—a person who so produced any of the books; or

                     (b)  in any case—a person who was a party to the compilation of any of the books;

to explain to the best of his or her knowledge and belief any matter about the compilation of any of the books or to which any of the books relate.

           (10)  In this section:

proceeding includes:

                     (a)  in relation to a contravention of Division 2 of Part 2—a proceeding under a law of the Commonwealth, a State or a Territory; and

                     (b)  otherwise—a proceeding under a law of the Commonwealth, or of a State or Territory in this jurisdiction.

38   Powers where books not produced

                   Where a person fails to produce particular books in compliance with a requirement made by another person under this Division, the other person may require the first-mentioned person to state, to the best of his or her knowledge and belief:

                     (a)  where the books may be found; and

                     (b)  who last had possession, custody or control of the books and where that person may be found.

39   Power to require person to identify property of body corporate

                   A person who has power under this Division to require another person to produce books relating to affairs of a body corporate may, whether or not that power is exercised, require the other person, so far as the other person can do so:

                     (a)  to identify property of the body; and

                     (b)  to explain how the body has kept account of that property.

39A   ASIC may give copy of book relating to registered scheme to another person

             (1)  ASIC may, subject to such conditions (if any) as it imposes, give to a person a copy of any book in its possession that relates to a registered scheme.

             (2)  If a copy of a book is given to a person under subsection (1) subject to conditions, the person, and any other person who has possession, custody or control of the copy or a copy of it, must comply with the conditions.

Penalty:  10 penalty units or imprisonment for 3 months, or both.



 

Division 4 Requirements to disclose information about securities or futures contracts

40   When certain powers may be exercised

                   A power conferred by section 41 or 44 may only be exercised:

                     (a)  for the purposes of the performance or exercise of any of ASIC’s functions and powers under the corporations legislation (other than the excluded provisions); or

                     (b)  for the purposes of ensuring compliance with the corporations legislation (other than the excluded provisions); or

                     (c)  in relation to:

                              (i)  an alleged or suspected contravention of the corporations legislation (other than the excluded provisions); or

                             (ii)  an alleged or suspected contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, being a contravention that concerns the management or affairs of a body corporate, or involves fraud or dishonesty and relates to a body corporate, securities or futures contracts; or

                     (d)  for the purposes of an investigation under Division 1.

41   Acquisitions and disposals of securities

             (1)  ASIC may require a dealer to disclose to it, in relation to an acquisition or disposal of securities:

                     (a)  the name of the person from or through whom, or on whose behalf, the securities were acquired; or

                     (b)  the name of the person to or through whom, or on whose behalf, the securities were disposed of;

as the case may be, and the nature of the instructions given to the dealer in relation to the acquisition or disposal.

             (2)  ASIC may require a person to disclose to it, in relation to an acquisition or disposal of securities by the person, whether or not the person acquired or disposed of the securities as trustee for, or for or on behalf of, another person, and, if so:

                     (a)  the name of the other person; and

                     (b)  the nature of any instructions given to the first-mentioned person in relation to the acquisition or disposal.

             (3)  ASIC may require a person who conducts a stock market to disclose to ASIC, in relation to an acquisition or disposal of securities on that stock market, the names of the persons who acted in the acquisition or disposal.

43   Exercise of certain powers of ASIC in relation to securities

             (1)  This section applies where ASIC considers that:

                     (a)  it may be necessary to exercise, in relation to securities of a body corporate, a power under section 775 of the Corporations Act; or

                     (b)  a contravention of section 845, or Division 2 of Part 7.11, of the Corporations Act may have been committed in relation to securities of a body corporate; or

                     (c)  a contravention of Chapter 6C of the Corporations Act may have been committed in relation to shares in a body corporate; or

                     (d)  a contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, may have been committed, being a contravention that involves fraud or dishonesty and relates to securities of a body corporate; or

                     (e)  unacceptable circumstances within the meaning of Part 6.9 of the Corporations Act have, or may have, occurred:

                              (i)  in relation to an acquisition of shares in a body corporate; or

                             (ii)  as a result of conduct engaged in by a person in relation to shares in, or the affairs of, a body corporate; or

                      (f)  a person has, or may have, contravened section 657F of the Corporations Act.

             (2)  ASIC may require a director, secretary or executive officer of the body to disclose to ASIC information of which he or she is aware and that:

                     (a)  may have affected a dealing that has taken place; or

                     (b)  may affect a dealing that may take place;

in securities of the body.

             (3)  If ASIC believes on reasonable grounds that a person can give, information about particular matters, being any or all of the following:

                     (a)  a dealing in securities of the body;

                     (b)  advice, or an analysis or report, that a dealer, an investment adviser, or a securities representative of a person, has given, issued or published about such securities;

                     (c)  the financial position of a business carried on by a person who:

                              (i)  is or has been (either alone or together with any other person or persons) a dealer or investment adviser; and

                             (ii)  has dealt in, has given advice about, or has issued or published an analysis or report about, such securities;

                     (d)  the financial position of a business carried on by a nominee controlled by a person of a kind referred to in paragraph (c) or jointly controlled by 2 or more persons at least one of whom is such a person;

                     (e)  an audit of, or a report of an auditor about, accounts or records of a dealer or investment adviser, being accounts or records relating to dealings in such securities;

ASIC may require the person to disclose to it the information that the person has about those particular matters.

             (4)  ASIC must not exercise a power conferred by subsection (2) or (3) except:

                     (a)  if paragraph (1)(a) applies—for the purpose of determining whether or not to exercise a power as mentioned in that paragraph; or

                     (b)  if paragraph (1)(b), (c) or (d) applies—for the purpose of investigating the possible contravention; or

                     (c)  if paragraph (1)(e) or (f) applies—for the purpose of determining whether or not to make an application under section 657C or 657G of the Corporations Act.

44   Dealings in futures contracts

             (1)  ASIC may require a futures broker to disclose to it, in relation to a dealing by the futures broker in a futures contract, whether or not the dealing was effected on another person’s behalf, and, if so:

                     (a)  the name of the other person; and

                     (b)  the nature of the instructions given to the futures broker in relation to the dealing.

             (2)  ASIC may require a person to disclose to it, in relation to a dealing in a futures contract effected on the person’s instructions, whether or not the person gave the instructions as trustee for, or for or on behalf of, another person, and, if so:

                     (a)  the name of the other person; and

                     (b)  the nature of any instructions given to the first-mentioned person in relation to the dealing.

             (3)  ASIC may require a futures exchange to disclose to it, in relation to a dealing in a futures contract on a futures market of that futures exchange, the names of the members of the futures exchange who were concerned in any act or omission in relation to the dealing.

             (4)  ASIC may require a clearing house for a futures market to disclose to ASIC, in relation to a dealing in a futures contract on that futures market, the names of the members of the clearing house who were concerned in any act or omission in relation to the dealing.

46   Exercise of certain powers of ASIC in relation to futures contracts

             (1)  ASIC must not exercise a power conferred by this section except:

                     (a)  where it considers that it may be necessary to give a direction under section 1138 of the Corporations Act—for the purpose of determining whether or not to give such a direction; or

                     (b)  where it considers that there may have been committed:

                              (i)  a contravention of Part 8.7 (other than sections 1258 and 1267) of the Corporations Act; or

                             (ii)  a contravention of a law of the Commonwealth, or of a State or Territory in this jurisdiction, being a contravention that involves fraud or dishonesty and relates to futures contracts;

                            for the purpose of investigating the possible contravention.

             (2)  Where ASIC believes on reasonable grounds that a person can give information about particular matters, being any or all of the following:

                     (a)  a dealing in futures contracts;

                     (b)  advice, or an analysis or report, that a futures broker, a futures adviser, or a futures representative of a person, has given, issued or published about futures contracts;

                     (c)  the financial position of a business carried on by a person who is or has been (either alone or together with any other person or persons) a futures broker or futures adviser;

                     (d)  the financial position of a business carried on by a nominee controlled by a person of a kind referred to in paragraph (c) or jointly controlled by 2 or more persons at least one of whom is such a person;

                     (e)  an audit of, or a report of an auditor about, accounts or records of a futures broker or futures adviser, being accounts or records relating to dealings in futures contracts;

ASIC may require the person to disclose to it the information that the person has about those particular matters.

47   Disclosures to take place in private

             (1)  A disclosure to ASIC pursuant to a requirement made under this Division must take place in private and ASIC may give directions about who may be present during it, or during a part of it.

             (2)  A person must not be present during a disclosure unless he or she:

                     (a)  is a member; or

                     (b)  is a staff member approved by ASIC; or

                     (c)  is entitled to be present by virtue of:

                              (i)  a direction under subsection (1); or

                             (ii)  subsection 48(1).

Penalty:  10 penalty units or imprisonment for 3 months, or both.

48   Lawyer of person making disclosure may attend

             (1)  The lawyer of a person making a disclosure to ASIC pursuant to a requirement made under this Division may be present during the disclosure and may, at such times during it as the representative of ASIC presiding at the meeting during which the disclosure is made determines, address the representatives of ASIC about the disclosure.

             (2)  If, in the presiding representative’s opinion, a person is trying to obstruct the disclosure by exercising rights under subsection (1), the presiding representative may require the person to stop addressing the representatives of ASIC.



 

Division 5 Proceedings after an investigation

49   ASIC may cause prosecution to be begun

             (1)  This section applies where:

                     (a)  as a result of an investigation; or

                     (b)  from a record of an examination;

conducted under this Part, it appears to ASIC that a person:

                     (c)  may have committed an offence against the corporations legislation; and

                     (d)  ought to be prosecuted for the offence.

             (2)  ASIC may cause a prosecution of the person for the offence to be begun and carried on.

             (3)  If:

                     (a)  ASIC, on reasonable grounds, suspects or believes that a person can give information relevant to a prosecution for the offence; or

                     (b)  the offence relates to matters being, or connected with, affairs of a body corporate, or to matters including such matters;

ASIC may, whether before or after a prosecution for the offence is begun, by writing given to the person, or to an eligible person in relation to the body, as the case may be, require the person or eligible person to give all reasonable assistance in connection with such a prosecution.

             (4)  Subsection (3) does not apply in relation to:

                     (a)  the person referred to in subsection (1); or

                     (b)  a person who is or has been that person’s lawyer.

             (5)  Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983 .

50   ASIC may cause civil proceeding to be begun

                   Where, as a result of an investigation or from a record of an examination (being an investigation or examination conducted under this Part), it appears to ASIC to be in the public interest for a person to begin and carry on a proceeding for:

                     (a)  the recovery of damages for fraud, negligence, default, breach of duty, or other misconduct, committed in connection with a matter to which the investigation or examination related; or

                     (b)  recovery of property of the person;

ASIC:

                     (c)  if the person is a company—may cause; or

                     (d)  otherwise—may, with the person’s written consent, cause;

such a proceeding to be begun and carried on in the person’s name.



 

Division 6 Hearings

51   Power to hold hearings

                   ASIC may hold hearings for the purposes of the performance or exercise of any of its functions and powers under the corporations legislation (other than the excluded provisions), other than a function or power conferred on it by Division 1 of this Part or by section 657C or 657G of the Corporations Act.

52   General discretion to hold hearing in public or private

             (1)  Subject to sections 53 and 54, ASIC may direct that a hearing take place in public or take place in private.

             (2)  In exercising its discretion under subsection (1), ASIC must have regard to:

                     (a)  whether evidence that may be given, or a matter that may arise, during the hearing is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence; and

                     (b)  any unfair prejudice to a person’s reputation that would be likely to be caused if the hearing took place in public; and

                     (c)  whether it is in the public interest that the hearing take place in public; and

                     (d)  any other relevant matter.

53   Request by person appearing at hearing that it take place in public

             (1)  Subject to section 54, where:

                     (a)  the corporations legislation (other than the excluded provisions) requires ASIC to give a person an opportunity to appear at a hearing; and

                     (b)  the person requests that the hearing or part of the hearing take place in public;

the hearing or part must take place in public.

             (2)  Despite subsection (1), where ASIC is satisfied, having regard to the matters referred to in subsection 52(2), that it is desirable that a hearing or part of a hearing take place in private, it may direct that the hearing or part take place in private.

54   Certain hearings to take place in private

                   Where the corporations legislation (other than the excluded provisions and this section) requires a hearing to take place in private, the hearing must take place in private.

55   ASIC may restrict publication of certain material

             (1)  Where, at a hearing that is taking place in public or in private, ASIC is satisfied that it is desirable to do so, ASIC may give directions preventing or restricting the publication of evidence given before, or of matters contained in documents lodged with, ASIC.

             (2)  In determining whether or not to give a direction under subsection (1), ASIC must have regard to:

                     (a)  whether evidence that has been or may be given, or a matter that has arisen or may arise, during the hearing is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence against an Australian law; and

                     (b)  any unfair prejudice to a person’s reputation that would be likely to be caused unless ASIC exercises its powers under this section; and

                     (c)  whether it is in the public interest that ASIC exercises its powers under this section; and

                     (d)  any other relevant matter.

56   Who may be present when hearing takes place in private

             (1)  ASIC may give directions about who may be present during a hearing that is to take place in private.

             (2)  A direction under subsection (1) does not prevent:

                     (a)  a person whom the corporations legislation (other than the excluded provisions) requires to be given the opportunity to appear at a hearing; or

                     (b)  a person representing under section 59:

                              (i)  a person of a kind referred to in paragraph (a) of this subsection; or

                             (ii)  a person who, by virtue of such a direction, is entitled to be present at a hearing;

from being present during the hearing.

             (3)  Where ASIC directs that a hearing take place in private, a person must not be present at the hearing unless he or she:

                     (a)  is a member; or

                     (b)  is a staff member approved by ASIC; or

                     (c)  is entitled to be present by virtue of:

                              (i)  a direction under subsection (1); or

                             (ii)  subsection (2).

Penalty:  10 penalty units or imprisonment for 3 months.

57   Involvement of person entitled to appear at hearing

             (1)  This section applies where the corporations legislation (other than the excluded provisions) requires ASIC to give a person an opportunity to appear at a hearing and to make submissions and give evidence to it.

             (2)  ASIC must appoint a place and time for the hearing and cause written notice of that place and time to be given to the person.

             (3)  If the person does not wish to appear at the hearing, the person may, before the day of the hearing, lodge with ASIC any written submissions that the person wishes ASIC to take into account in relation to the matter concerned.

58   Power to summon witnesses and take evidence

             (1)  A member may, by written summons in the prescribed form given to a person:

                     (a)  require the person to appear before ASIC at a hearing to give evidence, to produce specified documents, or to do both; and

                     (b)  require the person to attend from day to day unless excused, or released from further attendance, by a member.

             (2)  At a hearing, ASIC may take evidence on oath or affirmation, and for that purpose a member may:

                     (a)  require a witness at the hearing to either take an oath or make an affirmation; and

                     (b)  administer an oath or affirmation to a witness at the hearing.

             (3)  The oath or affirmation to be taken or made by a person for the purposes of this section is an oath or affirmation that the evidence the person will give will be true.

             (4)  The member presiding at a hearing:

                     (a)  may require a witness at the hearing to answer a question put to the witness; and

                     (b)  may require a person appearing at the hearing pursuant to a summons issued under this section to produce a document specified in the summons.

             (5)  ASIC may permit a witness at a hearing to give evidence by tendering, and if ASIC so requires, verifying by oath, a written statement.

59   Proceedings at hearings

             (1)  A hearing must be conducted with as little formality and technicality, and with as much expedition, as the requirements of the corporations legislation (other than the excluded provisions) and a proper consideration of the matters before ASIC permit.

             (2)  At a hearing, ASIC:

                     (a)  is not bound by the rules of evidence; and

                     (b)  may, on such conditions as it thinks fit, permit a person to intervene; and

                     (c)  must observe the rules of natural justice.

             (3)  Subject to subsection (4), Division 4 of Part 4 (other than section 104) applies, so far as practicable, in relation to a hearing as if the hearing were a meeting of ASIC.

             (4)  At a hearing before a Division of ASIC, 2 members of the Division form a quorum.

             (5)  At a hearing, a natural person may appear in person or be represented by an employee of the person approved by ASIC.

             (6)  A body corporate may be represented at a hearing by an officer of the body corporate approved by ASIC.

             (7)  An unincorporated association, or a person in the person’s capacity as a member of an unincorporated association, may be represented at a hearing by a member or officer of the association approved by ASIC.

             (8)  Any person may be represented at a hearing by a barrister or solicitor of the Supreme Court of a State or Territory or of the High Court.

60   ASIC to take account of evidence and submissions

                   ASIC must take into account:

                     (a)  evidence given, or a submission made, to it at a hearing; or

                     (b)  a submission lodged with it under section 57;

in making a decision on a matter to which the evidence or submission relates.

61   Reference to Court of question of law arising at hearing

             (1)  ASIC may, of its own motion or at a person’s request, refer to the Court for decision a question of law arising at a hearing.

             (3)  Where a question has been referred under subsection (1), ASIC must not, in relation to a matter to which the hearing relates:

                     (a)  give while the reference is pending a decision to which the question is relevant; or

                     (b)  proceed in a manner, or make a decision, that is inconsistent with the Court’s opinion on the question.

             (4)  Where a question is referred under subsection (1):

                     (a)  ASIC must send to the Court all documents that were before ASIC in connection with the hearing; and

                     (b)  at the end of the proceeding in the Court in relation to the reference, the Court must cause the documents to be returned to ASIC.

62   Protection of members etc.

             (1)  A member has, in the performance or exercise of any of his or her functions and powers as a member in relation to a hearing, the same protection and immunity as a Justice of the High Court.

          (1A)  A delegate of a member has, in the performance or exercise of any delegated function or power in relation to a hearing, the same protection and immunity as a Justice of the High Court.

             (2)  A barrister, solicitor or other person appearing on a person’s behalf at a hearing has the same protection and immunity as a barrister has in appearing for a party in a proceeding in the High Court.

             (3)  Subject to this Act, a person who is required by a summons under section 58 to appear at a hearing, or a witness at a hearing, has the same protection as a witness in a proceeding in the High Court.



 

Division 7 Offences

63   Non-compliance with requirements made under this Part

             (1)  A person must not, without reasonable excuse, fail to comply with a requirement made under section 19, subsection 21(3), section 30, 31, 32, 32A, 33 or 34, subsection 37(9) or section 38 or 39.

Penalty:  100 penalty units or imprisonment for 2 years, or both.

             (2)  A person must not, without reasonable excuse, fail to comply with a requirement made under section 41, 42, 43, 44, 45 or 46.

Penalty:  50 penalty units or imprisonment for 12 months, or both.

             (3)  A person must not, without reasonable excuse, fail to comply with a requirement made under subsection 21(1) or 29(2), paragraph 24(2)(a) or subsection 49(3) or 58(1), (2) or (4).

Penalty:  10 penalty units or imprisonment for 3 months, or both.

             (4)  A person must comply with a requirement made under subsection 23(2) or 48(2).

Penalty:  5 penalty units.

64   False information

             (1)  A person must not:

                     (a)  in purported compliance with a requirement made under this Part; or

                     (b)  in the course of an examination of the person;

give information, or make a statement, that is false or misleading in a material particular.

Penalty:  100 penalty units or imprisonment for 2 years, or both.

             (2)  A person must not, at a hearing, give evidence that is false or misleading in a material particular.

Penalty:  10 penalty units or imprisonment for 3 months, or both.

             (3)  It is a defence to a prosecution for a contravention of subsection (1) or (2) if it is proved that the defendant, when giving the information or evidence or making the statement, believed on reasonable grounds that it was true and not misleading.

65   Obstructing person acting under this Part

             (1)  A person must not, without reasonable excuse:

                     (a)  obstruct or hinder a person in the exercise of a power under this Part; or

                     (b)  obstruct or hinder a person who is executing a warrant issued under section 36.

Penalty:  100 penalty units or imprisonment for 2 years, or both.

             (2)  The occupier, or person in charge, of premises that a person enters under a warrant issued under section 36 must provide to that person all reasonable facilities and assistance for the effective exercise of his or her powers under the warrant.

Penalty:  25 penalty units or imprisonment for 6 months, or both.

66   Contempt of ASIC

             (1)  A person must not:

                     (a)  obstruct or hinder ASIC or a member in the performance or exercise of any of ASIC’s functions and powers; or

                     (b)  disrupt a hearing.

Penalty:  50 penalty units or imprisonment for 1 year, or both.

             (2)  A person must not, without reasonable excuse, contravene a direction given under subsection 55(1).

Penalty:  50 penalty units or imprisonment for 1 year, or both.

             (3)  An offence constituted by a contravention of subsection (1) or (2) is punishable on summary conviction.

67   Concealing books relevant to investigation

             (1)  Where ASIC is investigating, or is about to investigate, a matter, a person must not:

                     (a)  in any case—conceal, destroy, mutilate or alter a book relating to that matter; or

                     (b)  if a book relating to that matter is in a particular State or Territory—take or send the book out of that State or Territory or out of Australia.

Penalty:  200 penalty units or imprisonment for 5 years, or both.

             (2)  It is a defence to a prosecution for a contravention of subsection (1) if it is proved that the defendant intended neither to defeat the purposes of the corporations legislation, nor to delay or obstruct an investigation, or a proposed investigation, by ASIC.

68   Self-incrimination

             (1)  For the purposes of this Part, of Division 3 of Part 10, and of Division 2 of Part 11, 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.

69   Legal professional privilege

             (1)  This section applies where:

                     (a)  under this Part, Division 3 of Part 10, or Division 2 of Part 11, a person requires a lawyer:

                              (i)  to give information; or

                             (ii)  to produce a book; and

                     (b)  giving the information would involve disclosing, or the book contains, as the case may be, a privileged communication made by, on behalf of or to the lawyer in his or her capacity as a lawyer.

             (2)  The lawyer is entitled to refuse to comply with the requirement unless:

                     (a)  if the person to whom, or by or on behalf of whom, the communication was made is a body corporate that is under official management or being wound up—the official manager or liquidator of the body; or

                     (b)  otherwise—the person to whom, or by or on behalf of whom, the communication was made;

consents to the lawyer complying with the requirement.

             (3)  If the lawyer so refuses, he or she must, as soon as practicable, give to the person who made the requirement a written notice setting out:

                     (a)  if the lawyer knows the name and address of the person to whom, or by or on behalf of whom, the communication was made—that name and address; and

                     (b)  if subparagraph (1)(a)(i) applies and the communication was made in writing—sufficient particulars to identify the document containing the communication; and

                     (c)  if subparagraph (1)(a)(ii) applies—sufficient particulars to identify the book, or the part of the book, containing the communication.

Penalty:  10 penalty units or imprisonment for 3 months, or both.

70   Powers of Court where non-compliance with Part

             (1)  This section applies where ASIC is satisfied that a person has, without reasonable excuse, failed to comply with a requirement made under this Part (other than Division 8).

             (2)  ASIC may by writing certify the failure to the Court.

             (3)  If ASIC does so, the Court may inquire into the case and may order the person to comply with the requirement as specified in the order.



 

Division 8 ASIC’s powers where non-compliance with Part

71   Orders by ASIC

                   This Division applies where, in ASIC’s opinion, information about:

                     (a)  affairs of a body corporate; or

                     (b)  securities; or

                     (c)  futures contracts;

needs to be found out for the purposes of the exercise of any of ASIC’s powers under this Part but cannot be found out because a person has failed to comply with a requirement made under this Part.

72   Orders in relation to securities of a body corporate

                   If paragraph 71(a) applies, ASIC may make one or more of the following:

                     (a)  an order restraining a specified person from disposing of any interest in specified securities of the body corporate referred to in that paragraph;

                     (b)  an order restraining a specified person from acquiring any interest in specified securities of the body;

                     (c)  an order restraining the exercise of voting or other rights attached to specified securities of the body;

                     (d)  an order directing the holder of securities in respect of which an order under this section is in force to give written notice of that order to any person whom the holder knows to be entitled to exercise a right to vote attached to the securities;

                     (e)  an order directing the body not to pay, except in the course of winding up, a sum due from the body in respect of specified securities of the body;

                      (f)  an order directing the body not to register the transfer or transmission of specified securities of the body;

                     (g)  an order directing the body not to issue to a person who holds shares in the body shares that the body proposed to issue to the person:

                              (i)  because the person holds shares in the body; or

                             (ii)  pursuant to an offer or invitation made or issued to the person because the person holds shares in the body.

73   Orders in relation to securities generally

                   If paragraph 71(b) applies, ASIC may make one or more of the following:

                     (a)  an order restraining a specified person from disposing of any interest in specified securities;

                     (b)  an order restraining a specified person from acquiring any interest in specified securities;

                     (c)  an order restraining the exercise of voting or other rights attached to specified securities;

                     (d)  an order directing the holder of securities in respect of which an order under this section is in force to give written notice of that order to any person whom the holder knows to be entitled to exercise a right to vote attached to the securities;

                     (e)  an order directing a body corporate not to pay, except in the course of winding up, a sum due from the body in respect of specified securities;

                      (f)  an order directing a body corporate not to register the transfer or transmission of specified securities;

                     (g)  an order directing a body corporate not to issue to a person who holds shares in the body shares that the body proposed to issue to the person:

                              (i)  because the person holds such shares; or

                             (ii)  pursuant to an offer or invitation made or issued to the person because the person holds such shares.

74   Orders in relation to futures contracts

             (1)  If paragraph 71(c) applies, ASIC may make one or more of the following:

                     (a)  an order restraining a specified person from disposing of specified futures contracts;

                     (b)  an order restraining a specified person from acquiring specified futures contracts;

                     (c)  an order restraining a specified person from exercising rights under specified futures contracts;

                     (d)  an order requiring a specified person to dispose of specified futures contracts, or to dispose of specified futures contracts in a specified manner.

             (2)  An order under subsection (1) does not prejudice or affect a right of a futures exchange, or of a clearing house for a futures exchange:

                     (a)  to cause a futures contract to be closed out, or to close out a futures contract, because of a failure to meet a call for a deposit or margin; or

                     (b)  to enter into a liquidating trade in order so to cause a futures contract to be closed out, or in order so to close out a futures contract; or

                     (c)  to cause to be registered in a person’s name, or to register in a person’s name, a futures contract that was previously registered in another person’s name.

             (3)  In this section:

right includes a right enforceable neither at law nor in equity.

75   Orders under this Division

             (1)  ASIC may make an order varying or revoking an order in force under this Division.

             (2)  An order under this Division must be made by notice published in the Gazette .

             (3)  Where an order is made under this Division (other than subsection (1)), ASIC must cause to be given to the person to whom the order is directed:

                     (a)  a copy of the order; and

                     (b)  a copy of each order varying or revoking it.

             (4)  Where an order under this Division relates to securities, ASIC must cause:

                     (a)  a copy of the order; and

                     (b)  a copy of each order varying or revoking it;

to be given to:

                     (c)  in any case—the person who issued or made available, or who will issue or make available, the securities; or

                     (d)  if the securities are rights or options—the person against whom the right or option is, or would be enforceable.

             (5)  A person must comply with an order in force under this Division.

Penalty:  25 penalty units or imprisonment for 6 months, or both.



 

Division 9 Evidentiary use of certain material

76   Statements made at an examination: proceedings against examinee

             (1)  A statement that a person makes at an examination of the person is admissible in evidence against the person in a proceeding unless:

                     (a)  because of subsection 68(3), the statement is not admissible in evidence against the person in the proceeding; or

                     (b)  the statement is not relevant to the proceeding and the person objects to the admission of evidence of the statement; or

                     (c)  the statement is qualified or explained by some other statement made at the examination, evidence of the other statement is not tendered in the proceeding and the person objects to the admission of evidence of the first-mentioned statement; or

                     (d)  the statement discloses matter in respect of which the person could claim legal professional privilege in the proceeding if this subsection did not apply in relation to the statement, and the person objects to the admission of evidence of the statement.

             (2)  Subsection (1) applies in relation to a proceeding against a person even if it is heard together with a proceeding against another person.

             (3)  Where a written record of an examination of a person is signed by the person under subsection 24(2) or authenticated in any other prescribed manner, the record is, in a proceeding, prima facie evidence of the statements it records, but nothing in this Part limits or affects the admissibility in the proceeding of other evidence of statements made at the examination.

77   Statements made at an examination: other proceedings

                   Where direct evidence by a person (the absent witness ) of a matter would be admissible in a proceeding, a statement that the absent witness made at an examination of the absent witness and that tends to establish that matter is admissible in the proceeding as evidence of that matter:

                     (a)  if it appears to the court or tribunal that:

                              (i)  the absent witness is dead or is unfit, because of physical or mental incapacity, to attend as a witness; or

                             (ii)  the absent witness is outside the State or Territory in which the proceeding is being heard and it is not reasonably practicable to secure his or her attendance; or

                            (iii)  all reasonable steps have been taken to find the absent witness but he or she cannot be found; or

                     (b)  if it does not so appear to the court or tribunal—unless another party to the proceeding requires the party tendering evidence of the statement to call the absent witness as a witness in the proceeding and the tendering party does not so call the absent witness.

78   Weight of evidence admitted under section 77

             (1)  This section applies where evidence of a statement made by a person at an examination of the person is admitted under section 77 in a proceeding.

             (2)  In deciding how much weight (if any) to give to the statement as evidence of a matter, regard is to be had to:

                     (a)  how long after the matters to which it related the statement was made; and

                     (b)  any reason the person may have had for concealing or misrepresenting a material matter; and

                     (c)  any other circumstances from which it is reasonable to draw an inference about how accurate the statement is.

             (3)  If the person is not called as a witness in the proceeding:

                     (a)  evidence that would, if the person had been so called, have been admissible in the proceeding for the purpose of destroying or supporting his or her credibility is so admissible; and

                     (b)  evidence is admissible to show that the statement is inconsistent with another statement that the person has made at any time.

             (4)  However, evidence of a matter is not admissible under this section if, had the person been called as a witness in the proceeding and denied the matter in cross-examination, evidence of the matter would not have been admissible if adduced by the cross-examining party.

79   Objection to admission of statements made at examination

             (1)  A party (the adducing party ) to a proceeding may, not less than 14 days before the first day of the hearing of the proceeding, give to another party to the proceeding written notice that the adducing party:

                     (a)  will apply to have admitted in evidence in the proceeding specified statements made at an examination; and

                     (b)  for that purpose, will apply to have evidence of those statements admitted in the proceeding.

             (2)  A notice under subsection (1) must set out, or be accompanied by writing that sets out, the specified statements.

             (3)  Within 14 days after a notice is given under subsection (1), the other party may give to the adducing party a written notice:

                     (a)  stating that the other party objects to specified statements being admitted in evidence in the proceeding; and

                     (b)  specifies, in relation to each of those statements, the grounds of objection.

             (4)  The period prescribed by subsection (3) may be extended by the court or tribunal or by agreement between the parties concerned.

             (5)  On receiving a notice given under subsection (3), the adducing party must give to the court or tribunal a copy of:

                     (a)  the notice under subsection (1) and any writing that subsection (2) required to accompany that notice; and

                     (b)  the notice under subsection (3).

             (6)  Where subsection (5) is complied with, the court or tribunal may either:

                     (a)  determine the objections as a preliminary point before the hearing of the proceeding begins; or

                     (b)  defer determination of the objections until the hearing.

             (7)  Where a notice has been given in accordance with subsections (1) and (2), the other party is not entitled to object at the hearing of the proceeding to a statement specified in the notice being admitted in evidence in the proceeding, unless:

                     (a)  the other party has, in accordance with subsection (3), objected to the statement being so admitted; or

                     (b)  the court or tribunal gives the other party leave to object to the statement being so admitted.

80   Copies of, or extracts from, certain books

             (1)  A copy of, or an extract from, a book relating to:

                     (a)  affairs of a body corporate; or

                     (b)  a matter referred to in any of paragraphs 31(1)(g) to (m), inclusive, and 32(1)(j) to (p), inclusive; or

                     (c)  a matter referred to in paragraph 32A(c) or (d);

is admissible in evidence in a proceeding as if the copy were the original book, or the extract were the relevant part of the original book, as the case may be, whether or not the copy or extract was made under section 37.

             (2)  A copy of, or an extract from, a book is not admissible in evidence under subsection (1) unless it is proved that the copy or extract is a true copy of the book, or of the relevant part of the book, as the case may be.

             (3)  For the purposes of subsection (2), a person who has compared:

                     (a)  a copy of a book with the book; or

                     (b)  an extract from a book with the relevant part of the book;

may give evidence, either orally or by an affidavit or statutory declaration, that the copy or extract is a true copy of the book or relevant part, as the case may be.

81   Report under Division 1

                   Subject to section 82, where a copy of a report under Division 1 purports to be certified by ASIC as a true copy of such a report, the copy is admissible in a proceeding (other than a criminal proceeding) as prima facie evidence of:

                     (a)  ASIC’s report of its opinion for the purposes of paragraph 461(1)(h) or subparagraph 583(c)(iii) of the Corporations Act; and

                     (b)  any facts or matters that the report states ASIC to have found to exist.

82   Exceptions to admissibility of report

             (1)  This section applies where a party to a proceeding tenders a copy of a report as evidence against another party.

             (2)  The copy is not admissible under section 81 in the proceeding as evidence against the other party unless the court or tribunal is satisfied that:

                     (a)  a copy of the report has been given to the other party; and

                     (b)  the other party, and the other party’s lawyer, have had a reasonable opportunity to examine that copy and to take its contents into account in preparing the other party’s case.

             (3)  Before or after the copy referred to in subsection (1) is admitted in evidence, the other party may apply to cross-examine, in relation to the report, a specified person who, or 2 or more specified persons each of whom:

                     (a)  was concerned in preparing the report or making a finding about a fact or matter that the report states ASIC to have found to exist; or

                     (b)  whether or not pursuant to a requirement made under this Part, gave information, or produced a book, on the basis of which, or on the basis of matters including which, such a finding was made.

             (4)  The court or tribunal must grant an application made under subsection (3) unless it considers that, in all the circumstances, it is not appropriate to do so.

             (5)  If:

                     (a)  the court or tribunal grants an application or applications made under subsection (3); and

                     (b)  a person to whom the application or any of the applications relate, or 2 or more such persons, is or are unavailable, or does not or do not attend, to be cross-examined in relation to the report; and

                     (c)  the court or tribunal is of the opinion that to admit the copy under section 81 in the proceeding as evidence against the other party without the other party having the opportunity so to cross-examine the person or persons would unfairly prejudice the other party;

the court or tribunal must refuse so to admit the copy, or must treat the copy as not having been so admitted, as the case requires.

83   Material otherwise admissible

                   Nothing in this Division renders evidence inadmissible in a proceeding in circumstances where it would have been admissible in that proceeding if this Division had not been enacted.



 

Division 10 Miscellaneous

84   Requirement made of a body corporate

                   Where a provision of this Part empowers a person to make a requirement of a body corporate, the provision also empowers the person to make that requirement of a person who is or has been an officer of the body.

85   Evidence of authority

                   A person (the inspector ), other than ASIC, who is about to make, or has made, a requirement of another person under this Part (other than Division 6) must, if the other person requests evidence of the inspector’s authority to make the requirement, produce to the other person:

                     (a)  a current identity card that was issued to the inspector by ASIC and incorporates a photograph of the inspector; and

                     (b)  if the requirement will be, or was, made under an authorisation by ASIC—a document that was issued by ASIC and sets out the effect of so much of the authorisation as is relevant to making the requirement; and

                     (c)  otherwise—such evidence (if any) of the inspector’s authority to make the requirement as ASIC determines.

86   Giving documents to natural persons

                   Section 109X of the Corporations Act has effect for the purposes of this Part as if a reference in subsection (2) of that section to leaving a document at an address were a reference to leaving it at that address with a person whom the person leaving the document believes on reasonable grounds:

                     (a)  to live or work at that address; and

                     (b)  to have attained the age of 16 years.

87   Place and time for production of books

                   A provision of this Part that empowers a person to require the production of books at a place and time specified by the person is taken:

                     (a)  to require the person to specify a place and time that are reasonable in all the circumstances; and

                     (b)  if it is reasonable in all the circumstances for the person to require the books to be produced forthwith—to empower the person to require the books to be produced forthwith.

88   Application of Crimes Act and Evidence Act

             (1)  For the purposes of Part III of the Crimes Act 1914 , an examination or a hearing is a judicial proceeding.

             (2)  Part 2.2, sections 69, 70, 71 and 147 and Division 2 of Part 4.6 of the Evidence Act 1995 apply to an examination in the same way that they apply to a proceeding to which that Act applies under section 4 of that Act.

89   Allowances and expenses

             (1)  A person who, pursuant to a requirement made under section 19, appears for examination is entitled to the prescribed allowances and expenses (if any).

             (2)  A person who, pursuant to a summons issued under section 58, appears at a hearing is entitled to be paid:

                     (a)  if the summons was issued at another person’s request—by that other person; or

                     (b)  otherwise—by ASIC;

the prescribed allowances and expenses (if any).

             (3)  ASIC may pay such amount as it thinks reasonable on account of the costs and expenses (if any) that a person incurs in complying with a requirement made under this Part.

90   Expenses of investigation under Division 1

                   Subject to section 91, ASIC must pay the expenses of an investigation.

91   Recovery of expenses of investigation

             (1)  Where:

                     (a)  a person is convicted of an offence against a law of the Commonwealth, or of a State or Territory in this jurisdiction, in a prosecution; or

                     (b)  a judgment is awarded, or a declaration or other order is made, against a person in a proceeding in a court of this jurisdiction; or

                    (ba)  a person is convicted of an offence against Division 2 of Part 2 in a prosecution; or

                    (bb)  a judgment is awarded, or a declaration or other order is made, against a person under Division 2 of Part 2 in a proceeding in a court;

begun as a result of an investigation under Division 1, ASIC may make one of the following orders:

                     (c)  an order that the person pay the whole, or a specified part, of the expenses of the investigation;

                     (d)  an order that the person reimburse ASIC to the extent of a specified amount of such of the expenses of the investigation as ASIC has paid;

                     (e)  an order that the person pay, or reimburse ASIC in respect of, the whole, or a specified part, of the cost to ASIC of making the investigation, including the remuneration of a member or staff member concerned in the investigation.

             (2)  An order under this section must be in writing and must specify when and how the payment or reimbursement is to be made.

             (3)  A person must comply with an order under this section that is applicable to the person.

Penalty:  50 penalty units or imprisonment for 1 year, or both.

             (4)  ASIC may recover in a court of competent jurisdiction as a debt due to ASIC so much of the amount payable under an order made under this section as is not paid in accordance with the order.

             (5)  A report under Division 1 may include recommendations about the making of orders under this section.

92   Compliance with Part

                   A person is neither liable to a proceeding, nor subject to a liability, merely because the person has complied, or proposes to comply, with a requirement made, or purporting to have been made, under this Part.

93   Effect of Part

             (1)  Except as expressly provided, nothing in this Part limits the generality of anything else in this Part.

             (2)  The functions and powers that this Part confers are in addition to, and do not derogate from, any other function or power conferred by a law of the Commonwealth, a State or a Territory.

93AA   Enforcement of undertakings

             (1)  ASIC may accept a written undertaking given by a person in connection with a matter in relation to which ASIC has a function or power under this Act.

             (2)  The person may withdraw or vary the undertaking at any time, but only with ASIC’s consent.

             (3)  If ASIC considers that the person who gave the undertaking has breached any of its terms, ASIC may apply to the Court for an order under subsection (4).

             (4)  If the Court is satisfied that the person has breached a term of the undertaking, the Court may make all or any of the following orders:

                     (a)  an order directing the person to comply with that term of the undertaking;

                     (b)  an order directing the person to pay to the Commonwealth an amount up to the amount of any financial benefit that the person has obtained directly or indirectly and that is reasonably attributable to the breach;

                     (c)  any order that the Court considers appropriate directing the person to compensate any other person who has suffered loss or damage as a result of the breach;

                     (d)  any other order that the Court considers appropriate.