(3) For the purposes of subsection 272B(1), in subsection 3LA(1) of the Crimes Act 1914, after the words “A constable”, insert “, or a member of ASIC or an ASIC staff member authorised in writing by ASIC for the purposes of this subsection,”.
(4) For the purposes of subsection 272B(1), in subsection 3R(1) of the Crimes Act 1914, after the words “A constable”, insert “, or a member of ASIC or an ASIC staff member authorised in writing by ASIC for the purposes of this subsection,”.
272F Major modifications—purposes for which things may be used and shared
For the purposes of subsection 272B(1), replace section 3ZQU of the Crimes Act 1914 with the following 2 sections.
3ZQU Purposes for which things may be used and shared
(1) A constable or Commonwealth officer may use, or make available to a member of ASIC or an ASIC staff member to use, a thing seized under this Part for the purpose of the performance of ASIC’s functions or duties or the exercise of its powers.
(2) Without limiting the scope of subsection (1), a constable or Commonwealth officer may use, or make available to a person covered under subsection (3) to use, a thing seized under this Part for the purpose of any or all of the following if it is necessary to do so for that purpose:
(a) preventing or investigating any of the following:
(i) a breach of an offence provision;
(ii) a breach of a civil penalty provision;
(iii) a breach of an obligation (whether under statute or otherwise), other than an obligation of a private nature (such as an obligation under a contract, deed, trust or similar arrangement);
(b) prosecuting a breach of an offence provision;
(c) prosecuting a breach of a civil penalty provision;
(d) taking administrative action, or seeking an order of a court or tribunal (within the meaning of the Australian Securities and Investments Commission Act 2001), in response to a breach of an obligation (whether under statute or otherwise), other than an obligation of a private nature (such as an obligation under a contract, deed, trust or similar arrangement).
(3) A person is covered under this subsection if the person is any of the following:
(a) a constable;
(b) a Commonwealth officer.
(4) Without limiting the scope of subsections (1) and (2), a constable or Commonwealth officer may use, or make available to a person covered under subsection (3) to use, a thing seized under this Part for the purpose of any or all of the following if it is necessary to do so for that purpose:
(a) proceedings under the Proceeds of Crime Act 1987 or the Proceeds of Crime Act 2002;
(b) proceedings under a corresponding law (within the meaning of either of the Acts mentioned in paragraph (a)) that relate to a State offence that has a federal aspect;
(c) proceedings for the forfeiture of the thing under a law of the Commonwealth, a State or a Territory;
(d) the performance of a function or duty, or the exercise of a power, by a person, court or other body under, or in relation to a matter arising under, Division 104, 105 or 105A of the Criminal Code;
(e) investigating or resolving a complaint or an allegation of misconduct relating to an exercise of a power or the performance of a function or duty under this Part;
(f) investigating or resolving an AFP conduct or practices issue (within the meaning of the Australian Federal Police Act 1979) under Part V of that Act;
(g) investigating or resolving a complaint under the Ombudsman Act 1976 or the Privacy Act 1988;
(h) conducting a NACC Act process (within the meaning of the National Anti‑Corruption Commission Act 2022);
(i) proceedings in relation to a complaint, allegation or issue mentioned in paragraph (e), (f), (g) or (h);
(j) deciding whether to institute proceedings, to make an application or request, or to take any other action, mentioned in:
(i) any of the preceding paragraphs of this subsection; or
(ii) subsection (1) or (2);
(k) the performance of the functions of the Australian Federal Police under section 8 of the Australian Federal Police Act 1979.
(5) A constable or Commonwealth officer may use a thing seized under this Part for any other use that is required or authorised by or under a law of a State or a Territory.
(6) A constable or Commonwealth officer may make available to another constable or Commonwealth officer to use a thing seized under this Part for any purpose for which the making available of the thing is required or authorised by a law of a State or Territory.
(7) To avoid doubt, this section does not limit any other law of the Commonwealth that:
(a) requires or authorises the use of a document or other thing; or
(b) requires or authorises the making available (however described) of a document or other thing.
(8) A constable or Commonwealth officer may make available to an agency that has responsibility for:
(a) law enforcement in a foreign country; or
(b) intelligence gathering for a foreign country; or
(c) the security of a foreign country;
a thing seized under this Part to be used by that agency for:
(d) a purpose mentioned in subsection (1), (2), (4), (5) or (6); or
(e) the purpose of performing a function, or exercising a power, conferred by a law in force in that foreign country.
Ministerial arrangements for sharing
(9) This Division does not prevent the Minister from making an arrangement with a Minister of a State or Territory for:
(a) the making available to a State or Territory law enforcement agency of that State or Territory, for purposes mentioned in subsections (1), (2), (4), (6) and (8), of things seized under this Part; and
(b) the disposal by the agency of such things, originals and copies when they are no longer of use to that agency for those purposes.
Note: This subsection does not empower the Minister to make such an arrangement.
Definition
(10) In this section:
State or Territory law enforcement agency means:
(a) the police force or police service of a State or Territory; or
(b) the New South Wales Crime Commission; or
(c) the Independent Commission Against Corruption of New South Wales; or
(d) the Law Enforcement Conduct Commission of New South Wales; or
(e) the Independent Broad‑based Anti‑corruption Commission of Victoria; or
(f) the Crime and Corruption Commission of Queensland; or
(g) the Corruption and Crime Commission of Western Australia; or
(h) the Independent Commissioner Against Corruption of South Australia.
3ZQUA Commonwealth law permitting access to things seized under this Part does not apply
(1) This section applies if, disregarding this section, a law of the Commonwealth (other than this Part) requires or permits any of the following to be made available to a person covered under subsection (3):
(a) a thing seized under this Part;
(b) if a thing contains data that ASIC or the Australian Federal Police came into possession of as a result of exercising powers under this Part—the thing.
(2) Subject to subsection (4), that law does not require or permit the thing to be made available to the person.
(3) A person is covered under this subsection if the person is not, and is not representing, the Commonwealth, a State or a Territory.
(4) This section does not affect any of the following:
(a) the power of a court, or of a tribunal (within the meaning of the Australian Securities and Investments Commission Act 2001), to make an order;
(b) the effect of an order of a court, or of a tribunal (within the meaning of that Act).
(5) This section does not affect the operation of the Freedom of Information Act 1982.
272G Minor modifications
(1) For the purposes of subsection 272B(1), the applied provisions apply with the modifications set out in this section.
(2) To avoid doubt, those modifications have no effect other than for the purposes mentioned in subsection (1).
(3) In subsection 3C(1) of the Crimes Act 1914, insert the following definitions:
ASIC means the Australian Securities and Investments Commission.
ASIC senior staff member means a senior staff member (within the meaning of the Australian Securities and Investments Commission Act 2001).
ASIC staff member means a staff member (within the meaning of the Australian Securities and Investments Commission Act 2001).
responsible agency, in relation to data or a thing, means:
(a) if the data, or a device containing the data, or the thing, is in the control of the Australian Federal Police—the Australian Federal Police; or
(b) if the data, or a device containing the data, or the thing, is in the control of ASIC—ASIC.
responsible Commissioner, in relation to data or a thing, means:
(a) if the data, or a device containing the data, or the thing, is in the control of the Australian Federal Police—the Commissioner of the Australian Federal Police; or
(b) if the data, or a device containing the data, or the thing, is in the control of ASIC—the Chairperson of ASIC.
(4) In section 3E of the Crimes Act 1914:
(a) omit the note to subsection (1) of that section; and
(b) omit the words “is a member or special member of the Australian Federal Police and” in subsection (4) of that section.
(5) In subsections 3L(1B) and 3LAA(3) and sections 3ZQX and 3ZQZB of the Crimes Act 1914:
(a) treat the references to the Commissioner as being references to the responsible Commissioner; and
(b) treat the references to the Australian Federal Police as being references to the responsible agency.
Part 6‑4—Proceedings after an investigation
Division 1—Introduction
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
(1) This section applies if:
(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.
Note: Failure to comply with a requirement made under this subsection is an offence (see section 290).
(5) An offence under subsection 290(2) relating to subsection (4) of this section is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.
(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.
275 ASIC may bring civil proceedings
If, as a result of an investigation or from a record of an examination (being an investigation or examination conducted under this Chapter), it appears to ASIC to be in the public interest for a person to bring and carry on proceedings (other than proceedings under the Commonwealth credit legislation) for:
(a) the recovery of damages for fraud, negligence, default, breach of duty, or other misconduct, committed in connection with a matter to which the investigation or examination related; or
(b) recovery of property of the person;
ASIC:
(c) if the person is a company (within the meaning of the Corporations Act 2001)—may cause; or
(d) otherwise—may, with the person’s written consent, cause;
such proceedings to be begun and carried on in the person’s name.
Part 6‑5—Hearings
Division 1—Introduction
276 Guide to this Part
This Part is about hearings held by ASIC.
Division 2 gives ASIC the power to hold hearings for the purpose of the performance of its functions and powers under the Commonwealth credit legislation (other than Part 6‑1).
Division 2 also includes rules and procedures for the conduct of hearings, including rules in relation to whether the hearing is conducted in private, and rules in relation to evidence and proceedings at hearings.
Division 2—Hearings
277 Power to hold hearings
ASIC may hold hearings for the purposes of the performance or exercise of any of its functions and powers under the Commonwealth credit legislation, other than a function or power conferred on it by Part 6‑1 (which deals with investigations).
278 General discretion to hold hearing in public or private
(1) Subject to sections 279 and 280, ASIC may direct that a hearing take place in public or take place in private.
(2) In exercising its discretion under subsection (1), ASIC must have regard to:
(a) whether evidence that may be given, or a matter that may arise, during the hearing is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence against a law of the Commonwealth, a State or a Territory; and
(b) any unfair prejudice to a person’s reputation that would be likely to be caused if the hearing took place in public; and
(c) whether it is in the public interest that the hearing take place in public; and
(d) any other relevant matter.
279 Request by person appearing at hearing that it take place in public
(1) Subject to section 280, if:
(a) the Commonwealth credit legislation requires ASIC to give a person an opportunity to appear at a hearing; and
(b) the person requests that the hearing or part of the hearing take place in public;
the hearing or part must take place in public.
(2) Despite subsection (1), if ASIC is satisfied, having regard to the matters referred to in subsection 278(2), that it is desirable that a hearing or part of a hearing take place in private, it may direct that the hearing or part take place in private.
(3) If a direction given under subsection (2) is in writing, it is not a legislative instrument.
280 Certain hearings to take place in private
If the Commonwealth credit legislation (other than this section) requires a hearing to take place in private, the hearing must take place in private.
281 ASIC may restrict publication of certain material
(1) If, at a hearing that is taking place in public or in private, ASIC is satisfied that it is desirable to do so, ASIC may give directions preventing or restricting the publication of evidence given before, or of matters contained in documents lodged with, ASIC.
Note: Failure to comply with a direction given under this subsection is an offence (see section 293).
(2) In determining whether or not to give a direction under subsection (1), ASIC must have regard to:
(a) whether evidence that has been or may be given, or a matter that has arisen or may arise, during the hearing is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence against a law of the Commonwealth, a State or a Territory; and
(b) any unfair prejudice to a person’s reputation that would be likely to be caused unless ASIC exercises its powers under this section; and
(c) whether it is in the public interest that ASIC exercises its powers under this section; and
(d) any other relevant matter.
(3) If a direction given under subsection (1) is in writing, it is not a legislative instrument.
282 Who may be present when hearing takes place in private
(1) ASIC may give directions about who may be present during a hearing that is to take place in private.
(2) A direction under subsection (1) does not prevent:
(a) a person whom the Commonwealth credit legislation requires to be given the opportunity to appear at a hearing; or
(b) a person representing under section 285:
(i) a person of a kind referred to in paragraph (a) of this subsection; or
(ii) a person who, by virtue of such a direction, is entitled to be present at a hearing;
from being present during the hearing.
(3) If ASIC directs that a hearing take place in private, a person must not be present at the hearing unless he or she:
(a) is an ASIC member; or
(b) is an ASIC staff member approved by ASIC; or
(c) is entitled to be present by virtue of:
(i) a direction under subsection (1); or
(ii) subsection (2).
Criminal penalty: 30 penalty units.
(4) Subsection (3) is an offence of strict liability.
Note: For strict liability, see section 6.1 of the Criminal Code.