Fact Sheet - ASIC and Royal Commission

When can coercive investigatory powers be utilised?

As part of a Royal Commission to the extent the information sought is directly relevant to the investigation as outlined in the Terms of Reference

As part of an investigation. ASIC must have a reason to suspect a contravention has occurred. However, ASIC can be directed by the Minister to commence an investigation in the public interest

Coercive powers

Power to summon a person to give evidence on oath and/or produce documents, subject to exceptions where a person has been charged with an offence (s6A(3)) or proceedings in response to a penalty have commenced (s6A(4))

Power to apply for search warrants (s4)

Coercive powers to require appearance of a witness for examination on oath (s19) inspect documents without warrant (s29), require production of documents (ss30-34) including where evidence may be self-incriminating (s 68)

Power to apply for search warrants (s35)

Offence for resisting requests

Criminal offences for failing to give evidence, providing false or misleading evidence, destroying documents etc (ss 3,6,6H, 6O)

Criminal offences for failing to produce (or concealing) documents, to attend examination or answer questions, and for giving false information, or obstructing investigation etc (ss63-67)

Admissibility

Statements made by a witness and documents produced by a person under compulsion are not admissible against them in any civil or criminal proceedings (s6DD)

Statements made of documents produced by a witness are not admissible against them in any civil penalty or criminal proceedings, where person claims before making the statement that it might be self-incriminating (s68)

Prosecution powers

A Royal Commission has no power to prosecute misconduct but may refer matters to other investigatory bodies (s6P)

ASIC has the power to initiate civil and criminal proceedings, and pursue prison terms, court orders and fines