25AConduct of examination

#### 25A Conduct of examination Conduct of proceedings (1) An examiner may regulate the conduct of proceedings at an examination as he or she thinks fit. Representation at examination (2) At an examination before an examiner: (a) a person giving evidence may be represented by a legal practitioner; and (b) if, by reason of the existence of special circumstances, the examiner consents to a person who is not giving evidence being represented by a legal practitioner—the person may be so represented. Persons present at examination (3) An examination before an examiner must be held in private and the examiner may give directions as to the persons who may be present during the examination or a part of the examination. (4) Nothing in a direction given by the examiner under subsection (3) prevents the presence, when evidence is being taken at an examination before the examiner, of: (a) a person representing the person giving evidence; or (b) a person representing, in accordance with subsection (2), a person who, by reason of a direction given by the examiner under subsection (3), is entitled to be present. (5) If an examination before an examiner is being held, a person (other than a member of the staff of the ACC approved by the examiner) must not be present at the examination unless the person is entitled to be present by reason of a direction given by the examiner under subsection (3) or by reason of subsection (4). Witnesses (6) At an examination before an examiner: (a) counsel assisting the examiner generally or in relation to the matter to which the special ACC operation/investigation relates; or (b) any person authorised by the examiner to appear before the examiner at the examination; or (c) any legal practitioner representing a person at the examination in accordance with subsection (2); may, so far as the examiner thinks appropriate, examine or cross‑examine any witness on any matter that the examiner considers relevant to the special ACC operation/investigation. (6A) For the purposes of subsection (6), the matters relevant to the special ACC operation/investigation may include: (a) the subject matter of any charge, or imminent charge, against the witness; and (b) the subject matter of any confiscation proceeding, or imminent confiscation proceeding, against the witness. (6B) Without limiting its effect apart from this subsection, this Act also has the effect it would have if: (a) subsection (6A) had not been enacted; or (b) subsection (6A) were, by express provision, confined to dealing with a charge against the witness or such a charge that is imminent; or (c) subsection (6A) were, by express provision, confined to dealing with a confiscation proceeding against the witness that has commenced or is imminent. (7) If a person (other than a member of the staff of the ACC) is present at an examination before an examiner while another person (the witness) is giving evidence at the examination, the examiner must: (a) inform the witness that the person is present; and (b) give the witness an opportunity to comment on the presence of the person. (8) To avoid doubt, a person does not cease to be entitled to be present at an examination before an examiner or part of such an examination if: (a) the examiner fails to comply with subsection (7); or (b) a witness comments adversely on the presence of the person under paragraph (7)(b). Confidentiality (9) An examiner may direct that examination material: (a) must not be used or disclosed; or (b) may only be used by, or disclosed to, specified persons in specified ways or on specified conditions. (9A) An examiner must give a direction under subsection (9) about examination material if the failure to do so: (a) might prejudice a person’s safety; or (b) would reasonably be expected to prejudice the examinee’s fair trial, if the examinee has been charged with a related offence or such a charge is imminent. (10) A direction under subsection (9) about examination material may, in writing, be varied or revoked by: (a) the CEO; or (b) the examiner conducting the examination, if the examinee for the examination material has neither been excused nor released from further attendance at the examination. (11) However, the direction cannot be varied or revoked if the variation or revocation: (a) might prejudice a person’s safety; or (b) would reasonably be expected to prejudice the examinee’s fair trial, if the examinee has been charged with a related offence or such a charge is imminent. Courts (12) If: (a) a person has been charged with an offence before a federal court or before a court of a State or Territory; and (b) the court considers that it may be desirable in the interests of justice that particular evidence given before an examiner, being evidence in relation to which the examiner has given a direction under subsection (9), be made available to the person or to a legal practitioner representing the person; the court may give to the examiner or to the CEO a certificate to that effect and, if the court does so, the examiner or the CEO, as the case may be, must make the evidence available to the court. (13) If: (a) the examiner or the CEO makes evidence available to a court in accordance with subsection (12); and (b) the court, after examining the evidence, is satisfied that the interests of justice so require; the court may make the evidence available to the person charged with the offence concerned or to a legal practitioner representing the person. Offences (14) A person commits an offence if the person contravenes subsection (5) by being present at an examination. Penalty: Imprisonment for 2 years or 120 penalty units, or both. (14A) A person commits an offence if: (a) the person uses or discloses examination material (whether or not the person is the first to do so); and (b) the use or disclosure contravenes a direction given under subsection (9) about the examination material; and (c) the use or disclosure is not under subsection (12) or (13) or paragraph 25C(1)(b). Penalty: Imprisonment for 2 years or 120 penalty units, or both. End of examination (15) At the conclusion of an examination held by an examiner, the examiner must give the head of the special ACC operation/investigation: (a) a record of the proceedings of the examination; and (b) any documents or other things given to the examiner at, or in connection with, the examination.