Have you been served with a Compulsory Examination Notice under section 19 of the Australian Securities and Investments Commissions Act? Here’s a short guide through the process and the reasons why claiming privilege against self-incrimination is important.

Compulsory Examination
A compulsory examination, or a section 19 examination, grants ASIC the power to ask questions about a matter which they are investigating. If you have been served with a compulsory examination it is imperative that you attend, as failure to participate or answer the questions asked is an offence punishable by both heavy fines and imprisonment.

If you have been served with notice to attend an examination, the law requires that you are afforded ample time to prepare. In doing so, it is recommended that you elect to have a lawyer present to help you navigate the process and to ensure your rights are protected.

The examination will be conducted in a private location, and will be highly confidential in nature. As such, your lawyer is the only person who you are entitled to have present in the room.

Before commencing, the ASIC officer should inform you of your rights and obligations, including that you must not discuss the meeting with anyone, for a specified period of time. The exception to this is that you may discuss the interview with your lawyer if they are in attendance. If your lawyer does not accompany you, you should first seek permission from ASIC to discuss the meeting with your lawyer afterward.

Throughout the interview you will be obliged to answer all questions directed at you, even if doing so exposes you to self-incrimination.

There is no inherent privilege against self-incrimination. In order to prevent self-incriminating evidence being admitted at trial, two conditions must be satisfied:

  • you must claim privilege in respect of your answer before answering a question; and
  • at trial, the court must find that the answer would in fact incriminate the examinee.

Having a lawyer present can assist in alleviating the stress associated with the examination process. Not only can a lawyer instruct you as to when you should claim privilege, but they can also assist in holding the examiners to account, by ensuring that their questions remain lawful and do not unnecessarily incriminate you.

Following the examination you will be sent a transcript of the meeting and asked to review it. Once you have checked it for errors, you must sign it.

As the transcript may ultimately be used as evidence against you in a civil or criminal trial, it is crucial that you review it carefully. In doing so, you should ensure that the answers you claimed privilege over have been excluded. If you believe an error has been recorded on the transcript, you should ask your legal team to notify ASIC in writing.

We are here to help
We understand that being served with a section 19 notice can be a stressful and overwhelming time. We have assisted numerous clients through the process . If you want to ensure that ASIC do not exceed their lawful authority in the questions they ask, and to ensure that you properly claim privilege, please do not hesitate to call us.