AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
require tax auditors to report any suspected for - eign bribery. If an investigating body (such as ASIC or the AFP) concludes that there may be grounds to charge someone with a Commonwealth offence, it refers the case to the relevant Director of Pub - lic Prosecutions, who will make an independent assessment on whether to prosecute. Independent Commissions In addition, there are a number of independent federal 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 investigation of third parties, including businesses, in relation to such conduct. Each state also has independent commissions which investigate possible corruption of both public officials and police at a state level (eg, the Independent Commission Against Corrup - tion in New South Wales (ICAC)). While these bodies cannot charge individuals or corporations with offences, they have wide- ranging investigative powers conferred by stat - ute. Reports following an investigation can be given to the police for further investigation, to parliament, or released publicly. Powers of Regulatory and Law Enforcement Agencies Regulatory and law enforcement agencies have significant 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 hearing or examination to answer questions. ASIC and the AFP, and certain other law enforce - ment agencies (such as NACC and ICAC), also have the power to conduct property searches and seize materials, usually after obtaining a search warrant. For some serious offences, law enforcement bodies will also have access to more intrusive covert powers, including tel - ephone intercepts. ASIC’s powers may only be used for the perfor - mance of its functions or in relation to an alleged or suspected contravention of the law or for for - mal investigations. Penalties may apply for fail - ing to comply with a written notice, or to attend an examination, without reasonable cause. In practice, demands for documents 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 application to a magistrate, provided the rele - vant 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, compelling a person to give evi - dence prior to or at trial.
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