Div 2Power of inspection etc

Division 2—Power of inspection etc 10—Power of Commission to require production of books For the purpose of ascertaining whether the provisions of this Act have been or are being complied with, an authorised person may, by notice in writing, require— (a) any incorporated association to produce to the authorised person immediately or, if a time and place at which the books are to be produced are specified in the notice, at that time and place such books relating to affairs of the association as are specified by the authorised person; or (b) any person who is or has been an officer or employee of, or an agent, banker, solicitor, auditor or other person acting in any capacity for, or on behalf of, an incorporated association (including an association that is in the course of being wound up or has been dissolved) to produce to the authorised person immediately such books relating to affairs of the association as are specified by the authorised person; or (c) any person to produce to the authorised person immediately any books relating to affairs of an incorporated association (including an association that is in the course of being wound up or has been dissolved) that are in the custody or under the control of that person. 11—Power of Commission to carry out investigations in relation to books (1) Subject to this Division, where an authorised person exercises a power under this Division to require another person to produce books— (a) if the books are produced, the authorised person— (i) may take possession of the books and may make copies of, or take extracts from, the books; and (ii) may require the other person, or any person who was party to the compilation of the books, to make a statement providing any explanation that the person concerned is able to provide as to any matter relating to the compilation of the books or as to any matter to which the books relate; and (iii) may retain possession of the books for such period as is necessary to enable the books to be inspected, and copies of, or extracts from, the books to be made or taken, by or on behalf of the Commission; and (iv) during that period must permit a person who would be entitled to inspect any one or more of the books if they were not in the possession of the authorised person to inspect that book or those books at any reasonable time; or (b) if the books are not produced, the authorised person may require the other person— (i) to state, to the best of his or her knowledge and belief, where the books may be found; and (ii) to identify the person who, to the best of his or her knowledge and belief, last had custody of the books and to state, to the best of his knowledge and belief, where that person may be found. (2) Where an authorised person exercises a power under this Division to require another person to produce books that are recorded, kept and reproduced by electronic means, the other person may comply with the requirement to produce those books by providing a printed reproduction of the information contained in the books. (3) Where this Division confers a power on an authorised person to require a person to produce books relating to affairs of an incorporated association, the authorised person also has power to require that person (whether or not he or she requires that person to produce books and whether or not any books are produced pursuant to such a requirement), so far as the other person is able to do so, to identify property of the association and explain the manner in which the association has kept account of that property. 12—Protection from liability A person is not subject to any liability by reason of compliance with a direction or requirement given or made under this Division. 13—Privileged communications (1) Where— (a) an authorised person makes a requirement under this Division of a duly qualified legal practitioner in respect of a book; and (b) the book contains a privileged communication made by or on behalf of the legal practitioner, or to the legal practitioner, in his or her capacity as such, the legal practitioner is entitled to refuse to comply with the requirement unless the person to whom, or by or on behalf of whom, the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner so refuses to comply with a requirement, he or she must immediately furnish, in writing, to the authorised person— (c) if he or she knows the name and address of the person to whom, or by or on behalf of whom, the communication was made—that name and address; and (d) sufficient particulars to identify the book, or the part of the book, containing the communication. (2) Where— (a) an authorised person, acting in pursuance of this Division, requires a duly qualified legal practitioner to make a statement providing an explanation as to any matter relating to the compilation of books or as to any matter to which any books relate; and (b) the legal practitioner is not able to make that statement without disclosing a privileged communication made by or on behalf of the legal practitioner, or to the legal practitioner, in his or her capacity as such, the legal practitioner is entitled to refuse to comply with the requirement, except to the extent that he or she is able to comply with the requirement without disclosing any privileged communication referred to in paragraph (b), unless the person to whom, or by or on behalf of whom, the communication was made agrees to the legal practitioner complying with the requirement but, where the legal practitioner so refuses to comply with a requirement, he or she must immediately furnish, in writing, to the authorised person— (c) if he or she knows the name and address of the person to whom, or by or on behalf of whom, the communication was made—that name and address; and (d) if the communication was made in writing—sufficient particulars to identify the document containing the communication. 14—Offences (1) A person must not, without reasonable excuse, refuse or fail to comply with a requirement made under this Division. (2) A person must not, in purported compliance with a requirement made under this Division, furnish information or make a statement that is false or misleading in a material particular. (3) It is a defence to a prosecution for an offence against this section if the defendant proves that he or she believed on reasonable grounds that the information or statement was true and was not misleading. (4) A person must not, without reasonable excuse, obstruct or hinder the Commission or another person in the exercise of any power under this Division. 15—Self-incrimination (1) A person is not excused from making a statement providing an explanation as to any matter relating to the compilation of any books or as to any matter to which any books relate pursuant to a requirement made of him or her in accordance with this Division on the ground that the statement might tend to incriminate him or her but, where the person claims before making a statement that the statement might tend to incriminate him or her, the statement is not admissible in evidence against him or her in criminal proceedings other than proceedings under section 14. (2) Subject to subsection (1), a statement made by a person in compliance with a requirement made under this Division may be used in evidence in any criminal or civil proceedings against that person. 16—Liens on books Where an authorised person requires the production of any books under this Division and a person has a lien on the books, the production of the books does not prejudice the lien. 17—Secrecy (1) An authorised person who, by reason of the authority granted to him or her pursuant to this Act, acquires information must not, except to the extent necessary to perform his or her official duties or to perform a function or exercise a power authorised by this Act, make a record of, or divulge or make use of in any other way, the information acquired. Maximum penalty: $10 000. (2) Notwithstanding subsection (1), a person is not guilty of an offence if he or she— (a) produces a document to a court in the course of criminal proceedings or proceedings taken under this or any other Act; or (b) divulges to a court during the course of any proceedings referred to in paragraph (a), any matter or thing coming under his or her notice in the performance of his or her official duties or in the performance of a function or exercise of a power referred to in subsection (1); or (ba) in the course of proceedings before the Tribunal, produces a document to the Tribunal or divulges to the Tribunal any matter or thing coming under his or her notice in the performance of his or her official duties or in the performance of a function or exercise of a power referred to in subsection (1); or (c) produces a document or divulges information to a person to whom, in the opinion of the Commission, it is in the public interest that the document be produced or the information be divulged; or (d) produces a document or divulges information that is required or permitted by any other Act to be produced or divulged, as the case may be.