Has ASIC asked you to attend a compulsory examination?
When your job, reputation, and future are at risk, urgent advice from our leading Brisbane criminal lawyers is critical. Early steps affect the outcome.
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Choosing the Best ASIC Lawyers in Queensland
If the Australian Securities and Investments Commission (ASIC) have contacted you as part of an investigation into an alleged breach of financial services laws or the Corporations Act, it is essential to act quickly. ASIC investigations can involve potential offences such as fraud, insider trading, market manipulation, misleading or deceptive conduct, or breaches of directors’ duties. These matters carry significant consequences, including criminal prosecution, heavy financial penalties, and reputational damage.
Early advice from an experienced ASIC investigation lawyer is critical. Our Brisbane criminal defence team has acted in complex corporate crime and financial services misconduct cases, providing strategic representation from the first point of contact with ASIC through to compulsory examinations, negotiations, and, if necessary, court proceedings. The steps you take now can significantly influence the outcome.
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What is ASIC?
ASIC is an independent government body with the primary responsibility of regulating companies and businesses within Australia. It regulates corporations, markets, financial services, and consumer credit services.
Their role is to:
Maintain, facilitate, and improve the performance of the financial system and entities in it with due diligence
Promote confident and informed participation by investors and consumers in the financial system
Administer the law effectively and with minimal procedural requirements
Quickly and efficiently receive, process, and store information they receive
Make information about companies and other bodies available to the public as soon as practicable
Take action to enforce and give effect to the law
Supply guidance for breach reporting obligations
As a corporate, market, and financial services regulator, the ASIC also has the power to administer criminal and civil penalties for misconduct in the financial sector. Part of their enforcement role gives them power to:
Investigate suspected breaches
Issue infringement notices
Seek civil penalties
Ban individual activity
Prosecute offenders
Areas of ASIC investigations
Reports of misconduct can come to ASIC’s attention in various ways including: reports from the public, through their monitoring and surveillance work, or from information from other agencies.
Depending on the allegations, ASIC will select which of those reports to investigate and, if appropriate, to prosecute.
The enforcement action which ASIC can take includes:
Criminal proceedings
Civil proceedings
Administrative and other enforcement action
Most clients come to us for advice if ASIC is considering fraud charges or other criminal charges against them.
ASIC will pursue criminal proceedings for the most serious and harmful wrongdoing, to help deter similar misconduct in the future. The misconduct which is viewed especially seriously usually involves dishonest, intention, or highly reckless acts.
Criminal law outcomes can include a term of imprisonment, a criminal conviction, and even impact someone’s ability to perform corporate duties such as being a company director.
Criminal proceedings require a higher standard of proof than civil proceedings. Criminal proceedings require proof beyond a reasonable doubt. ASIC will consider the evidence they have gathered to determine whether it is sufficient enough to meet the high standard of proof before a criminal court. ASIC may prosecute certain minor regulatory offences and refer more serious criminal law cases to the Commonwealth Director of Public Prosecutions (CDPP).
What if you are involved in an ASIC investigation?
It is important to seek advice from our team of ASIC lawyers as early as possible during an ASIC investigation to ensure that your rights are protected.
ASIC has a range of compulsory information-gathering powers.
ASIC has surveillance powers which can be undertaken on companies, partnerships, licensed or unlicensed entities, and individuals, and also on disclosure documents. The powers can be used to inspect documents, compel the production of documents, or to disclose information. The purpose is to test and ensure compliance with the law.
If ASIC suspects there has been a contravention of the law, they can undertake a formal investigation. ASIC’s compulsory information gathering powers give them the ability to conduct a detailed examination and request reasonable assistance which includes:
Power to require the production of documents
Power to inspect documents
Power to require disclosure of information
Power to require you to attend an examination
Power to compel assistance with an investigation
Power to apply for a search warrant
If you have received a notice from ASIC seeking to exercise any of the above powers against you, you should contact our ASIC lawyers immediately.
Specifically, we have assisted clients when ASIC has issued them a notice requesting that they attend an examination and answer questions on oath or affirmation. The notice will state a time and place for you to attend for the examination but you will have a reasonable amount of time before the examination date to seek legal advice.
ASIC does not need to inform you of the nature of the questions to be asked. Therefore, the notice will be general in nature about the subject matter under investigation. This is why it is crucial to speak to an experienced criminal lawyer who has previously worked on a relevant criminal case so that you understand your rights. We have attended examinations with clients in the past and are experienced in providing personal advice on what to expect at examination.
Failure to comply with Australia’s corporate, market, and finance regulator could result in a criminal offence.
FAQ - ASIC Investigations in Queensland
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If ASIC, on reasonable grounds, suspects or believes that you can give information about an investigation, then they can give you a written notice requiring you to:
Give reasonable assistance to ASIC in the investigation
Appear before ASIC to answer questions
The notice will include the general nature of the investigation. It is an offence if you do not comply with the notice. The maximum penalty for not complying with the notice can include imprisonment.
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Yes. You are entitled to have a lawyer attend the examination at ASIC with you.
As your lawyer, we can speak to the inspector on your behalf and ask you further questions to clarify any answers you may have given ASIC.
We will also ensure that the process and questioning is fair and within the scope of ASIC’s powers. The examination is private. It is not open to the public.
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Yes. If ASIC has issued a valid notice to you, then you must attend the examination and answer questions.
This includes answering questions which may lead to admitting to an offence.
However, before doing so, you have the right to claim that your answers may incriminate you.
If you make this claim, then your answers cannot be used as evidence against you in later criminal proceedings or proceedings where you could face a penalty, except in very limited circumstances.
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Yes. Before answering any questions, you should seek legal advice about the validity of the notice and the limits of ASIC’s powers.
ASIC can only ask questions that fall within the scope of the investigation described in the notice. It is important that you understand your rights and obligations, and that you only respond to questions ASIC is lawfully entitled to ask.
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Generally, answers you give at an ASIC examination cannot be used against you in criminal proceedings, except if you give false or misleading evidence.
This protection allows ASIC to obtain information while preserving your right to a fair trial.
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Yes. Examinations are recorded and a transcript is prepared. You will usually receive a copy of the transcript, but you must not disclose its contents except in limited circumstances allowed by law. Sharing the transcript without permission can itself be an offence.
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It is a serious criminal offence to give false or misleading information to ASIC. The penalties can include imprisonment. Even small inaccuracies or omissions may expose you to further investigation or charges.
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After an examination, ASIC may:
Start criminal proceedings if they believe an offence has been committed under the corporations law
Bring civil proceedings to recover money lost through fraud or misconduct
Seek recovery of property connected with their investigation
You may be issued with notices for proceedings immediately after the examination, or ASIC may continue to investigate before deciding whether to take action.
A lawyer can stay in contact with ASIC on your behalf to monitor the progress of the investigation and any decisions made.
Facing serious charges in Queensland?
If you or someone you know needs urgent legal advice, contact us now.
Call us on (07) 3012 6531 or fill in our Quick Enquiry form for a confidential discussion with our Brisbane criminal lawyers.