sec.28Power to obtain information and documents in relation to performance and exercise of functions and powers

sec.28 Power to obtain information and documents in relation to performance and exercise of functions and powers

If the AER has reason to believe that a person is capable of providing information, producing a document or giving evidence that the AER requires for the performance or exercise of a function or power conferred on it under this Law or the Rules, the AER may, by notice in writing, serve on that person a notice (a relevant notice ). A relevant notice may require the person to do 1 or more of the following: provide to the AER, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any information of the kind referred to in subsection (1) ; or produce to the AER, or to a person specified in the notice acting on its behalf, in accordance with the notice, any documents of the kind referred to in subsection (1) ; or appear before the AER, or before a member of the staff assisting the AER who is an SES employee or an acting SES employee and who is specified in the notice, at a time and place specified in the notice, to provide any information or to give any evidence of the kind referred to in subsection (1) , either orally or in writing, and to produce any documents of the kind referred to in subsection (1) . A person on whom a relevant notice is served must comply with the relevant notice unless the person has a reasonable excuse. Maximum penalty: in the case of a natural person—$6 300; in the case of a body corporate—$31 500. See Schedule 2 clause 37B, which provides for criminal penalty amounts specified to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website. A person must not, when appearing under subsection (2) (c) , refuse or fail to answer a question that the person is required to answer for the purpose of providing information or giving evidence unless the person has a reasonable excuse. Maximum penalty: $6 300. See Schedule 2 clause 37B, which provides for criminal penalty amounts specified to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website. A person must not, in purported compliance with a relevant notice, provide information or give evidence that the person knows is false or misleading in a material particular. Maximum penalty: in the case of a natural person—$6 300; in the case of a body corporate—$31 500. See Schedule 2 clause 37B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website. It is a reasonable excuse for the purposes of subsection (3) if the person served the relevant notice is not capable of complying with that notice. It is a reasonable excuse for the purposes of subsection (3a) if the person is not capable of providing the information or giving the evidence (as the case may be) to which the question relates. It is a reasonable excuse for a natural person to— fail to provide information or to give evidence of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice; fail to produce a document of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice acting on behalf of the AER, if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of this jurisdiction or another jurisdiction in Australia (whether or not that other jurisdiction is a participating jurisdiction). It is not a reasonable excuse for a person to— fail to provide information of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice; or fail to produce a document of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice acting on behalf of the AER, on the ground of any duty of confidence. This section does not require a person to— provide information that is the subject of legal professional privilege; or produce a document the production of which would disclose information that is the subject of legal professional privilege. This section does not require a person to— provide information or give evidence that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory; or produce a document prepared for the purposes of a meeting of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory; or provide information, give evidence or produce a document that would disclose the deliberations of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory. The AER, or a person specified in a relevant notice under this section, may require evidence given under subsection (2) (c) to be given on oath or affirmation and for that purpose the AER or specified person (as the case may be) may administer the oath or affirmation. A person must not, without reasonable excuse, refuse or fail to be sworn or to make an affirmation under subsection (9a) . Maximum penalty: $6 300. See Schedule 2 clause 37B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website. A person incurs, by complying with a relevant notice, no liability for breach of contract, breach of confidence or any other civil wrong. Subject to the preceding subsections, the Court may, on application by the AER on behalf of the Commonwealth, if satisfied that a person has breached subsection (3) or (3a), make an order that the person take such action as the Court requires for remedying the breach. To avoid doubt, the Court may act under subsection (11) if satisfied on the balance of probabilities that a person is in breach of subsection (3) or (3a) (as the case may be). The AER must not exercise, or continue to exercise, a power under subsection (1) in relation to a matter (and any notice under that subsection will cease to have effect)— after the AER has commenced proceedings in relation to the matter, other than proceedings for an injunction (whether interim or final); or if proceedings for a final injunction have been commenced by the AER—after the close of pleadings in those proceedings. Subsection (13) does not prevent the AER from— using any information, evidence or document acquired under this section in any proceedings if the information, evidence or document has been obtained before the commencement of those proceedings; or exercising a power under this section for a purpose other than for the purposes of proceedings referred to in that subsection. Any information, evidence or document obtained under subsection (14) (b) may be used in any proceedings if it is found to be relevant to those proceedings. The Regulations may make any other provision in relation to the form, content or service of a notice under this section. An annual report for the AER must include the following information relating to the relevant reporting period for that report: the number of notices given under this section for the purposes of a function under Division 1A ; the number of notices (if any) given under subsection (2) (c) during the reporting period to appear to provide information or to give evidence orally; in relation to a notice under paragraph (a) —a general description of the nature of the matter or matters in respect of which the notice was given; the number of proceedings (if any) commenced during the reporting period to challenge a notice given under subsection (2) (c) to appear to provide information or to give evidence orally. A person must not— threaten, intimidate or coerce another person; or cause or procure damage, loss or disadvantage to another person, because that other person— proposes to provide information, give evidence or produce a document in response to a notice under this section; or proposes to appear, or has appeared, in response to a notice under this section. Maximum penalty: $6 300. See Schedule 2 clause 37B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website. In this section— acting SES employee has the same meaning as in the Public Service Act 1999 of the Commonwealth; SES employee has the same meaning as in the Public Service Act 1999 of the Commonwealth. s 28 sub 2007 No. 53 (SA) s 25 amd 2020 No. 37 (SA) s 10 ; 2024 No. 12 (SA) s 11 (sec.28-ssec.1) If the AER has reason to believe that a person is capable of providing information, producing a document or giving evidence that the AER requires for the performance or exercise of a function or power conferred on it under this Law or the Rules, the AER may, by notice in writing, serve on that person a notice (a relevant notice ). (sec.28-ssec.2) A relevant notice may require the person to do 1 or more of the following: provide to the AER, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any information of the kind referred to in subsection (1) ; or produce to the AER, or to a person specified in the notice acting on its behalf, in accordance with the notice, any documents of the kind referred to in subsection (1) ; or appear before the AER, or before a member of the staff assisting the AER who is an SES employee or an acting SES employee and who is specified in the notice, at a time and place specified in the notice, to provide any information or to give any evidence of the kind referred to in subsection (1) , either orally or in writing, and to produce any documents of the kind referred to in subsection (1) . (sec.28-ssec.3) A person on whom a relevant notice is served must comply with the relevant notice unless the person has a reasonable excuse. Maximum penalty: in the case of a natural person—$6 300; in the case of a body corporate—$31 500. See Schedule 2 clause 37B, which provides for criminal penalty amounts specified to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website. (sec.28-ssec.3a) A person must not, when appearing under subsection (2) (c) , refuse or fail to answer a question that the person is required to answer for the purpose of providing information or giving evidence unless the person has a reasonable excuse. Maximum penalty: $6 300. See Schedule 2 clause 37B, which provides for criminal penalty amounts specified to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website. (sec.28-ssec.4) A person must not, in purported compliance with a relevant notice, provide information or give evidence that the person knows is false or misleading in a material particular. Maximum penalty: in the case of a natural person—$6 300; in the case of a body corporate—$31 500. See Schedule 2 clause 37B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website. (sec.28-ssec.5) It is a reasonable excuse for the purposes of subsection (3) if the person served the relevant notice is not capable of complying with that notice. (sec.28-ssec.5a) It is a reasonable excuse for the purposes of subsection (3a) if the person is not capable of providing the information or giving the evidence (as the case may be) to which the question relates. (sec.28-ssec.6) It is a reasonable excuse for a natural person to— fail to provide information or to give evidence of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice; fail to produce a document of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice acting on behalf of the AER, if to do so might tend to incriminate the person, or make the person liable to a criminal penalty, under a law of this jurisdiction or another jurisdiction in Australia (whether or not that other jurisdiction is a participating jurisdiction). (sec.28-ssec.7) It is not a reasonable excuse for a person to— fail to provide information of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice; or fail to produce a document of the kind referred to in subsection (1) to the AER, or to a person specified in a relevant notice acting on behalf of the AER, on the ground of any duty of confidence. (sec.28-ssec.8) This section does not require a person to— provide information that is the subject of legal professional privilege; or produce a document the production of which would disclose information that is the subject of legal professional privilege. (sec.28-ssec.9) This section does not require a person to— provide information or give evidence that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory; or produce a document prepared for the purposes of a meeting of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory; or provide information, give evidence or produce a document that would disclose the deliberations of the Cabinet or a committee of the Cabinet of the Commonwealth or of a State or a Territory. (sec.28-ssec.9a) The AER, or a person specified in a relevant notice under this section, may require evidence given under subsection (2) (c) to be given on oath or affirmation and for that purpose the AER or specified person (as the case may be) may administer the oath or affirmation. (sec.28-ssec.9b) A person must not, without reasonable excuse, refuse or fail to be sworn or to make an affirmation under subsection (9a) . Maximum penalty: $6 300. See Schedule 2 clause 37B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website. (sec.28-ssec.10) A person incurs, by complying with a relevant notice, no liability for breach of contract, breach of confidence or any other civil wrong. (sec.28-ssec.11) Subject to the preceding subsections, the Court may, on application by the AER on behalf of the Commonwealth, if satisfied that a person has breached subsection (3) or (3a), make an order that the person take such action as the Court requires for remedying the breach. (sec.28-ssec.12) To avoid doubt, the Court may act under subsection (11) if satisfied on the balance of probabilities that a person is in breach of subsection (3) or (3a) (as the case may be). (sec.28-ssec.13) The AER must not exercise, or continue to exercise, a power under subsection (1) in relation to a matter (and any notice under that subsection will cease to have effect)— after the AER has commenced proceedings in relation to the matter, other than proceedings for an injunction (whether interim or final); or if proceedings for a final injunction have been commenced by the AER—after the close of pleadings in those proceedings. (sec.28-ssec.14) Subsection (13) does not prevent the AER from— using any information, evidence or document acquired under this section in any proceedings if the information, evidence or document has been obtained before the commencement of those proceedings; or exercising a power under this section for a purpose other than for the purposes of proceedings referred to in that subsection. (sec.28-ssec.15) Any information, evidence or document obtained under subsection (14) (b) may be used in any proceedings if it is found to be relevant to those proceedings. (sec.28-ssec.16) The Regulations may make any other provision in relation to the form, content or service of a notice under this section. (sec.28-ssec.17) An annual report for the AER must include the following information relating to the relevant reporting period for that report: the number of notices given under this section for the purposes of a function under Division 1A ; the number of notices (if any) given under subsection (2) (c) during the reporting period to appear to provide information or to give evidence orally; in relation to a notice under paragraph (a) —a general description of the nature of the matter or matters in respect of which the notice was given; the number of proceedings (if any) commenced during the reporting period to challenge a notice given under subsection (2) (c) to appear to provide information or to give evidence orally. (sec.28-ssec.18) A person must not— threaten, intimidate or coerce another person; or cause or procure damage, loss or disadvantage to another person, because that other person— proposes to provide information, give evidence or produce a document in response to a notice under this section; or proposes to appear, or has appeared, in response to a notice under this section. Maximum penalty: $6 300. See Schedule 2 clause 37B, which provides for criminal penalty amounts to be adjusted every 3 years to reflect movements in the consumer price index. The adjusted amounts are published on the AER’s website. (sec.28-ssec.19) In this section— acting SES employee has the same meaning as in the Public Service Act 1999 of the Commonwealth; SES employee has the same meaning as in the Public Service Act 1999 of the Commonwealth.