AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
Powers of Regulatory and Law Enforcement Agencies Regulatory and law enforcement agencies have sig - nificant information-gathering powers to assist them with their investigations. ASIC, for example, may issue notices compelling a person to produce documents, provide information and/ or attend a compulsory hear - ing or examination to answer questions. ASIC and the AFP, and certain other law enforcement agencies (such as NACC and ICAC), also have the power to conduct property searches and seize materi - als, usually after obtaining a search warrant. For some serious offences, law enforcement bodies will also have access to more intrusive covert powers, includ - ing telephone intercepts. ASIC’s powers may only be used for the performance of its functions or in relation to an alleged or suspect - ed contravention of the law or for formal investiga - tions. Penalties may apply for failing to comply with a written notice, or to attend an examination, without reasonable cause. In practice, demands for docu - ments are often broadly defined, and it is common practice for recipients of such notices to engage with ASIC responding. Unlike ASIC, the AFP does not have the power to compel individuals to answer questions under oath. However, search warrant powers are available to the AFP, ASIC and many other authorities, upon applica - tion to a magistrate, provided the relevant authority is able to establish that there are “reasonable grounds for suspecting” that there is, or shortly will be, relevant evidentiary material at the premises. Subpoenas Lastly, if criminal proceedings are instituted, courts still have their ordinary powers to issue subpoenas or summonses at the request of the prosecutor, compel - ling a person to give evidence prior to or at trial. 7.3 Jurisdictional Reach of Enforcement Bodies The AFP’s decision to investigate potential offences under the Criminal Code or ASIC’s decision to inves - tigate potential breaches of directors’ duties under
national co-operation, specifically focuses on foreign bribery and related transnational corruption issues. In recent years, ASIC has become more actively inter - ested in potential Corporations Act contraventions by directors and officers involved in foreign bribery inves - tigations. The ATO, as the Commonwealth’s principal revenue collection agency, also refers information on suspect - ed or actual bribe transactions to the AFP for potential investigation and/or prosecution, and has established guidelines which require tax auditors to report any suspected foreign bribery. If an investigating body (such as ASIC or the AFP) concludes that there may be grounds to charge some - one with a Commonwealth offence, it refers the case to the relevant Director of Public Prosecutions, who will make an independent assessment on whether to prosecute. Independent Commissions In addition, there are a number of independent fed - eral and state commissions which investigate possible corruption of public officials (including politicians) and the police. At a federal level, NACC investigates and reports on serious or systemic corrupt conduct across the entire Commonwealth public sector. Its remit includes inves - tigation of third parties, including businesses, in rela - tion to such conduct. Each state also has independent commissions which investigate possible corruption of both public offi - cials and police at a state level (eg, the Independent Commission Against Corruption in New South Wales (ICAC)). While these bodies cannot charge individuals or corporations with offences, they have wide-ranging investigative powers conferred by statute. Reports following an investigation can be given to the police for further investigation, to parliament, or released publicly.
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