Some criminal matters sit at the intersection of criminal law and regulation, so they require specialist white collar criminal advice and representation. Our criminal defence team is experienced in defending Corporations Act offences, and matters involving ASIC and ATO investigations and prosecutions.
If you’re charged with a white collar crime, our experienced criminal lawyers can help you engage positively with regulators. This includes helping you prepare for interviews and examinations and advising you on your rights when it comes to producing and challenging documents. We can also represent you in court or other proceedings to manage exposure and protect your rights.
The Australian Securities and Investments Commission (ASIC) has extraordinary powers to compel a person to attend an examination and answer questions, or produce documents. In some cases, ASIC can also execute search warrants or force someone to give ‘reasonable assistance’ to an investigation or prosecution. This is commonly known as a ‘section 19 notice’ or a ‘Notice to Attend an Examination.’
Elkheir Partners have represented and assisted multiple corporate officers who have compelled by ASIC to answers questions under examination. If you have received a section 19 notice or a Notice to Attend an Examination, it is important that you obtain urgent legal advice to protect your interests.
If you have received a Notice to Attend an Examination from ASIC, then ASIC believes that you may have information that can assist them in an investigation. It does not necessarily mean that you are a suspect of any crime.
If you have received a Notice to Attend an Examination, you should get urgent legal advice as there are some important things you should know before attending.
The answers you give can only be used against you in criminal proceedings if a claim of privilege against self-incrimination is given. Unlike other compulsory examinations where a blanket protection can be given at the start of a hearing, to claim this privilege it must be done before each and every answer. A failure to claim the privilege can have serious consequences to you.
You will be allowed to have a lawyer with you when you attend the examination, but others are not allowed. A representative from ASIC will conduct the examination. The hearing can often be long and document intensive, and you will be shown various documents or pieces of evidence and asked to comment. The hearing will be recorded.
You can ask for a break if you need one, or if you want to speak with your lawyer in private.
You must comply with Notices from ASIC. The penalties for non-compliance can be severe and extend up to 2 years imprisonment.
You must comply with Notices from ASIC. The penalties for non-compliance can be severe and extend up to 2 years imprisonment.
Unknown to many people, the Corporations Act 2001 (Cth) not only regulates businesses and companies, but also includes criminal offences for breaches of the legislation. The Corporations Act 2001 (Cth) requires a director of a company to exercise their duties and obligations with care, diligence and in good faith. When a director does something that is not in the best interest of the company, they may be committing a criminal offence and can be charged. The penalties for such offences can range from a fine to 15 years imprisonment.
Some examples of criminal offences within the Corporations Act 2001 (Cth) are:
|
Section |
Criminal Offence |
Maximum Penalty |
|
Section 184(1) |
A director recklessly or intentionally fails to exercise their powers in good faith and in the company’s best interests. |
15 years imprisonment. |
|
Section 184(2) |
A director uses their position dishonestly, either intentionally or recklessly, to gain an advantage for themselves or someone else or causing a disadvantage to the company. |
15 years imprisonment. |
|
Section 184(3) |
Using information obtained as a director to gain an advantage for themselves or someone else or causing a disadvantage to the company. |
15 years imprisonment. |
|
Section 286 |
Failure to maintain proper books and records for the company. |
2 years imprisonment. |
|
Section 588G |
A director incurring a debt to the company when the company is insolvent, or the new debt would make the company insolvent, and there are reasonable grounds for suspecting that the company is, or would become, insolvent. |
5 years imprisonment. |
|
Section 588GAB(2) |
An officer of the company engages in an act to defeat a creditor by disposing of property when the company is insolvent, becomes insolvent because of the transaction and the officer knows, or should have known, that the transaction would operate to defeat a creditor’s claim. |
15 years imprisonment. |
