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ASIC Interviews - Section 19 ASIC act


Contact Armstrong Legal:
Sydney: (02) 9261 4555

John Sutton

ASIC has the power to require any person to attend an ASIC office and undertake an interview if they have reason to suspect the person can provide information relevant to any matter that ASIC is investigating.

ASIC regularly requires company employees, wives of directors, accountants and lawyers and any other advisors to undertake compulsory interviews when they are investigating a company for potential offences or breaches of the corporations law.

The interview is compulsory. You have the right to have your lawyer present. You must answer each of the questions put to you unless you claim legal professional privilege with respect to your answer. You will need to be able to explain why privilege will apply to the answer.

Giving false or misleading information to ASIC in a section 19 interview is an offence which ASIC regularly prosecutes people for. Accordingly, even if you are the not the primary person ASIC is interested in, it is still very important that you take this process seriously and be careful with the answers you provide.

When you receive the notice to attend for an interview

  • Don't panic. Read the notice carefully because it may give you some clues to what ASIC will be interested in speaking to you about. Do your homework by reviewing relevant events in your own mind and putting together documents which will jog your memory.
  • Consider whether you would like to have your lawyer present during the interview. Your lawyer may be able to clarify things with ASIC and make sure that your interests are protected during the interview. Your lawyer cannot excessively intervene in the questioning, however, and you will still have to answer the questions put to you.
  • Set aside a few hours for the interview. The process is long and tedious due to the need for ASIC officers to advise you of your rights and operate all the recording devices in addition to all the questions they will be asking you.

What happens at an ASIC interview

  • At the start of the interview you will be given a number of warnings. One of them relates to confidentiality. You will be forbidden from discussing your interview with anyone for a period of time (usually 6-12 months). This will not apply to discussing the matter with your lawyer if they are present. If they are not, then you should ask that the confidentiality notice be altered to allow you to discuss your interview with your named lawyer.
  • Take your time and listen to the questions put to you. Answer the questions as clearly and concisely as possible. There is no need to embellish or expand on your answers unless absolutely necessary to clarify things. The more you say, the more questions you will likely get asked and the longer you will be there.
  • Be honest. ASIC has wide-ranging record collection powers and regularly catches people trying to mislead them. If you are being asked about a document or an event, you can expect that ASIC will have already obtained the corresponding documentary records or will obtain them in the future. ASIC may already have interviewed other people involved, including your advisors/employees etc.
  • If the interview is taking a very long time (more than a couple of hours) and you are losing concentration, you can ask the ASIC officers to reconvene on another day. These interviews can stretch over multiple occasions if necessary.

After the ASIC interview

  • ASIC may have requested that you obtain documents referred to in the interview which you will need to gather.
  • You will have been given a detailed confidentiality warning preventing you from discussing the interview with anyone except your lawyer (if they were present or if you expressly asked for them to be excluded from the confidentiality). But if you have any concerns about the interview and have not previously obtained advice, it may be worthwhile seeking some advice at this stage. A lawyer can write to ASIC and ask to be allowed to discuss the interview with their client. Unless the lawyer was heavily involved in the conduct which ASIC is investigating, this will not be opposed.
  • You will be sent a transcript of the interview and asked to sign it. You have an obligation to review it, correct any typographical or clerical errors and sign it. It may be used in evidence against you or other people in civil or criminal proceedings. Any answers over which you claimed privilege will not be able to be used against you in criminal proceedings.
  • If you become aware that you have made a mistake in any of the answers you have given, you should clarify this with ASIC in writing as soon as possible.

where to next?

If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in corporate crime and will be able to guide you through the process while dealing with the various authorities related to your matter.

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