273Guide to this Part

273  Guide to this Part This Part is about criminal and civil proceedings that ASIC may bring after it has conducted an investigation under this Chapter. Division 2 deals with criminal proceedings. After an investigation of a person under this Chapter, ASIC may prosecute the person for an offence against the Commonwealth credit legislation (i.e. this Act or the National Credit Transitional Act). It may also require others to provide it with reasonable assistance in connection with the prosecution. Division 2 also deals with civil proceedings. After an investigation of a person under this Chapter, ASIC may bring civil proceedings against a person in particular circumstances. However, under this Division, ASIC cannot bring civil proceedings under the Commonwealth credit legislation. This is because Part 4‑2 (which deals with remedies) and the National Credit Code deal with when ASIC can bring those proceedings. Division 2—Proceedings after an investigation 274  ASIC may prosecute  (a) as a result of an investigation; or  (b) from a record of an examination; conducted under this Chapter, it appears to ASIC that a person:  (c) may have committed an offence against the Commonwealth credit legislation; and  (d) ought to be prosecuted for the offence.  (2) ASIC may cause a prosecution of the person for the offence to be brought and carried on.  (3) ASIC may make a requirement under subsection (4) if:  (a) ASIC, on reasonable grounds, suspects or believes that a person can give information relevant to a prosecution for the offence; or  (b) the offence relates to matters being, or connected with, affairs of a licensee, credit representative or other person who engages, or has engaged, in a credit activity, or to matters including such matters.  (4) ASIC may, whether before or after a prosecution for the offence is begun, by writing given to any of the following persons:  (a) the person referred to in paragraph (3)(a);  (b) a representative, banker, lawyer or auditor of a person referred to in paragraph (3)(b); require the person to give all reasonable assistance in connection with such a prosecution.  (5) An offence under subsection 290(2) relating to subsection (4) of this section is an offence of strict liability.  (6) Subsection (4) does not apply in relation to:  (a) the person referred to in subsection (1); or  (b) a person who is or has been that person’s lawyer. Note: A defendant bears an evidential burden in relation to the matter in subsection (6), see subsection 13.3(3) of the Criminal Code.  (7) A requirement made by ASIC under subsection (4) is not a legislative instrument.  (8) Nothing in this section affects the operation of the Director of Public Prosecutions Act 1983.