(3) An offence under subsection 290(3) relating to subsection (2) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
258 Record of examination
(1) The inspector may, and must if the examinee so requests, cause a record to be made of statements made at the examination.
(2) If a record made under subsection (1) is in writing or is reduced to writing:
(a) the inspector may require the examinee to read it, or to have it read to him or her, and may require him or her to sign it; and
(b) the inspector must, if requested in writing by the examinee to give to the examinee a copy of the written record, comply with the request without charge but subject to such conditions (if any) as the inspector imposes.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 290).
(3) An offence under subsection 290(2) relating to paragraph (2)(a) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
259 Giving to other persons copies of record
(1) ASIC may give a copy of a written record of the examination, or such a copy together with a copy of any related book, to a person’s lawyer if the lawyer satisfies ASIC that the person is carrying on, or is contemplating in good faith, proceedings in relation to a matter to which the examination related.
(2) If ASIC gives a copy to a person under subsection (1), the person, or any other person who has possession, custody or control of the copy or a copy of it, must not, except in connection with preparing, beginning or carrying on, or in the course of, proceedings:
(a) use the copy or a copy of it; or
(b) publish, or communicate to a person, the copy, a copy of it, or any part of the copy’s contents.
Criminal penalty: 30 penalty units.
(3) Subsection (2) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) ASIC may, subject to such conditions (if any) as it imposes, give to a person a copy of a written record of the examination, or such a copy together with a copy of any related book.
260 Copies given subject to conditions
(1) If a copy is given to a person under subsection 258(2) or 259(4) subject to conditions, the person, and any other person who has possession, custody or control of the copy or a copy of it, must comply with the conditions.
Criminal penalty: 30 penalty units.
(2) Subsection (1) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
261 Record to accompany report
(1) If a report about the investigation referred to in section 254 is prepared under section 250, each record (if any) of the examination must accompany the report.
(2) If:
(a) in ASIC’s opinion, a statement made at an examination is relevant to any other investigation under Part 6‑1; and
(b) a record of the statement was made under section 258; and
(c) a report about the other investigation is prepared under section 250;
a copy of the record must accompany the report.
Part 6‑3—Inspection of books and audit information‑gathering powers
Division 1—Introduction
262 Guide to this Part
This Part is about powers of ASIC in relation to the inspection of books and gathering of information about audits.
Division 2 includes powers of ASIC to inspect books, and to require persons to produce books or documents, or give information, in some circumstances.
Division 2—Inspection of books and audit information‑gathering powers
263 When certain powers may be exercised
A power conferred by this Part (other than sections 264, and 265) may only be exercised:
(a) for the purposes of the performance or exercise of any of ASIC’s functions and powers under the Commonwealth credit legislation; or
(b) for the purposes of ensuring compliance with the Commonwealth credit legislation; or
(c) in relation to an alleged or suspected contravention of the credit legislation; or
(d) in relation to an alleged or suspected contravention of a law of the Commonwealth, or of a law of a referring State or a Territory, being a contravention that:
(i) concerns the management, conduct or affairs of a licensee, credit representative or other person who engages, or has engaged, in a credit activity; or
(ii) involves fraud or dishonesty and relates to a credit activity engaged in by a person, or a credit contract, mortgage, guarantee or consumer lease; or
(e) for the purposes of an investigation under Part 6‑1.
264 ASIC may inspect books without charge
(1) A book that the Commonwealth credit legislation requires a person to keep must be open for inspection (without charge) by a person authorised in writing by ASIC.
(2) A person (the authorised person) authorised under this section may require a person in whose possession, custody or control the book is to make the book available for inspection by the authorised person.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 290).
(3) An offence under subsection 290(2) relating to subsection (2) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(4) An authorisation under this section may be of general application or may be limited by reference to the books to be inspected.
265 Notice to auditors concerning information and books
(1) Subject to subsection (2), ASIC may give an auditor who prepares an audit report required under the Commonwealth credit legislation a written notice requiring the auditor:
(a) to give specified information; or
(b) to produce specified books;
to a specified ASIC member or ASIC staff member at a specified place and time.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 290).
(2) The power in subsection (1) may only be exercised:
(a) for the purposes of ascertaining compliance with audit requirements under the Commonwealth credit legislation; or
(b) in relation to an alleged or suspected contravention of audit requirements under the Commonwealth credit legislation; or
(c) in relation to an alleged or suspected contravention of a law of the Commonwealth, or of a law of a referring State or a Territory, being a contravention that:
(i) concerns the management, conduct or affairs of a licensee, credit representative or other person who engages, or has engaged, in a credit activity; or
(ii) involves fraud or dishonesty and relates to a credit activity engaged in by a person, or a credit contract, mortgage, guarantee or consumer lease; or
(iii) is of a provision of Part 3‑2CA (about mandatory comprehensive credit reporting); or
(d) for the purposes of an investigation under Part 6‑1 relating to a contravention referred to in paragraph (b) or (c).
(3) Without limiting subsection (1), a notice under that subsection may specify information or books that relate to any or all of the following:
(a) the policies relating to audit that the auditor has adopted or proposes to adopt, or the procedures relating to audit that the auditor has put in place or proposes to put in place;
(b) audits the auditor has conducted or proposes to conduct or in which the auditor has participated or proposes to participate;
(c) any other matter pertaining to audit that is prescribed by the regulations for the purposes of this paragraph.
(4) Without limiting subsection (1), a notice under that subsection may require the auditor to give information or produce books even if doing so would involve a breach of an obligation of confidentiality that the auditor owes an audited person.
(5) ASIC may, by written notice to an auditor who has received a notice under subsection (1), extend the period within which the auditor must give the information or produce the books to which the notice under that subsection relates.
266 Notice to produce books about credit activities or credit reporting
(1) ASIC may give to:
(a) a person who engages in a credit activity (either alone or together with any other person or persons); or
(b) a person who ASIC, on reasonable grounds, suspects has been a party to engaging in a credit activity; or
(c) a representative, banker, lawyer or auditor of a person referred to in paragraph (a) or (b);
a written notice requiring the production to a specified ASIC member or ASIC staff member, at a specified place and time, of specified books relating to:
(d) a credit activity engaged in by a person; or
(e) the character or financial situation of, or a business carried on by, a person who engages, or has engaged, in a credit activity.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 290).
(2) ASIC may give to:
(a) a Part 3‑2CA body that is, or has been, subject to a requirement under Part 3‑2CA (other than Division 4), either alone or together with any other person or persons; or
(b) a representative, banker, lawyer or auditor of a person referred to in paragraph (a);
a written notice requiring the production to a specified ASIC member or ASIC staff member, at a specified place and time, of specified books relating to:
(c) information, or a statement, to which that requirement relates; or
(d) the character or financial situation of, or a business carried on by, a person who is, or has been, subject to that requirement.
Note 1: Part 3‑2CA is about mandatory comprehensive credit reporting.
Note 2: Failure to comply with a requirement made under this subsection is an offence (see section 290).
267 Notice to produce documents in person’s possession
(1) ASIC may give to a person (the recipient) a written notice requiring the production to a specified ASIC member or ASIC staff member, at a specified place and time, of specified books that are in the recipient’s possession, custody or control and relate to:
(a) affairs of a licensee, credit representative or other person who engages, or has engaged, in a credit activity; or
(b) a matter referred to in paragraph 266(1)(d) or (e) or (2)(c) or (d).
(2) ASIC may give to a person (the recipient) a written notice requiring the production to a specified ASIC member or ASIC staff member, at a specified place and time, of specified books that are in the recipient’s possession, custody or control and that relate to the question whether an auditor has complied with audit requirements under the Commonwealth credit legislation.
Note: Failure to comply with a requirement made under this section is an offence (see section 290).
268 ASIC may authorise persons to require production of books, giving of information etc.
(1) ASIC may by writing authorise an ASIC member or ASIC staff member (an authorised person) to make a requirement of a kind that this Part empowers ASIC to make.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 290).
(2) An authorisation under this section may be of general application or may be limited by reference to all or any of the following:
(a) the persons of whom requirements may be made;
(b) the books that may be required to be produced;
(c) the information that may be required to be given.
(3) If an authorisation of an authorised person is in force under this section, the authorised person may make a requirement in accordance with the authorisation as if, in sections 265, 266 and 267:
(a) a reference to ASIC were a reference to the authorised person; and
(b) a reference to specified books were a reference to books that the authorised person specifies, whether in the requirement or not and whether orally or in writing, to the person of whom the requirement is made; and
(c) a reference to specified information were a reference to information that the authorised person specifies, whether in the requirement or not and whether orally or in writing, to the person of whom the requirement is made; and
(d) a reference to giving or producing to a specified person were a reference to giving or producing to the authorised person.
271 Powers if books produced or seized
(1) This section applies if:
(a) books are produced to a person under a requirement made under this Part; or
(b) under a warrant issued under Division 2 of Part IAA of the Crimes Act 1914, as applied under section 272B of this Act, a person:
(i) takes possession of books; or
(ii) secures books against interference; or
(c) by virtue of a previous application of subsection (8) of this section, books are delivered into a person’s possession.
(1A) However, if paragraph (1)(b) applies, subsections (4), (5), (6), (7) and (8) do not apply.
(2) If paragraph (1)(a) applies, the person may take possession of any of the books.
(3) The person may inspect, and may make copies of, or take extracts from, any of the books.
(4) The person may use, or permit the use of, any of the books for the purposes of proceedings.
(5) The person may retain possession of any of the books for so long as is necessary:
(a) for the purposes of exercising a power conferred by this section (other than this subsection and subsection (7)); or
(b) for any of the purposes referred to in paragraphs 263(a), (b) and (e) or 265(2)(a) and (d), as the case requires; or
(c) for a decision to be made about whether or not proceedings (including proceedings under a law of the Commonwealth, or a law of a referring State or a Territory) to which the books concerned would be relevant should be begun; or
(d) for such proceedings to be begun and carried on.
(6) No‑one is entitled, as against the person, to claim a lien on any of the books, but such a lien is not otherwise prejudiced.
(7) While the books are in the possession of a person (the possessor), the possessor:
(a) must permit another person to inspect at all reasonable times such (if any) of the books as the other person would be entitled to inspect if they were not in the possessor’s possession; and
(b) may permit another person to inspect any of the books.
(8) The person may deliver any of the books into the possession of ASIC or of a person authorised by it to receive them.
(9) If paragraph (1)(a) or (b) applies, the person, or if paragraph (1)(a) applies a person into whose possession the person delivers any of the books under subsection (8), may require:
(a) if paragraph (1)(a) applies—a person who so produced any of the books; or
(b) in any case—a person who was a party to the compilation of any of the books;
to explain any matter about the compilation of any of the books or to which any of the books relate.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 290).
272 Powers if books not produced
If a person (the first person) fails or refuses to produce particular books in compliance with a requirement made by another person under this Part, the other person may require the first person to state:
(a) if the books may be found; and
(b) who last had possession, custody or control of the books and if that person may be found.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 290).
Part 6‑3A—Search warrants
Division 1—Introduction
272A Guide to this Part
This Part allows the grant of search warrants in respect of indictable offences under the credit legislation, etc.
Division 2—Extra application of Crimes Act search warrant provisions
Subdivision A—Basic extra application
272B Extra application of Crimes Act search warrant provisions
(1) In addition to the application that the applied provisions have (disregarding this subsection) in relation to offences mentioned in subsection (3), the applied provisions also apply under this subsection in relation to those offences, with the modifications set out in Subdivision B.
(2) To avoid doubt, subsection (1) does not limit the application that the applied provisions have (disregarding that subsection).
(3) For the purposes of subsection (1), the offences are indictable offences under any of the following:
(a) the credit legislation;
(b) a provision of a law of the Commonwealth, or of a law of a referring State or a Territory, a contravention of which:
(i) concerns the management, conduct or affairs of a licensee, credit representative or other person who engages, or has engaged, in a credit activity; or
(ii) involves fraud or dishonesty and relates to a credit activity engaged in by a person, or a credit contract, mortgage, guarantee or consumer lease.
(4) For the purposes of this Division, the applied provisions are as follows:
(a) Divisions 1, 2, 4C and 5 of Part IAA of the Crimes Act 1914;
(b) any other provisions of that Act, to the extent that those other provisions relate to the operation of the provisions mentioned in paragraph (a).
272C Interpretation of modifications
To avoid doubt, a term used in Subdivision B in a modification of an applied provision has the same meaning as in the Crimes Act 1914 unless specified otherwise.
Subdivision B—Modifications
272D Major modifications—evidential material
For the purposes of subsection 272B(1), in the definition of evidential material in subsection 3C(1) of the Crimes Act 1914, omit the words “or a thing relevant to a summary offence”.
272E Major modifications—who may apply for a warrant etc.
(1) For the purposes of subsection 272B(1), in subsection 3E(1) of the Crimes Act 1914, after the words “by information on oath or affirmation”, insert “given by a constable, or by a member of ASIC or an ASIC staff member authorised in writing by ASIC for the purposes of this subsection”.
(2) For the purposes of subsection 272B(1), in subsection 3E(2) of the Crimes Act 1914, after the words “by information on oath or affirmation”, insert “given by a constable, or by a member of ASIC or an ASIC staff member authorised in writing by ASIC for the purposes of this subsection”.