Under section 19 of the ASIC Act, ASIC has the power to compel any person to appear for ASIC investigators to take part in ASIC interview. ASIC will call upon any person they suspect is able to provide them with information relevant to any matter they are investigating. This may include the person who is the target of their investigation or any associate. It is not uncommon for ASIC to call on company employees, wives of directors, lawyers, accountants, financial advisors to attend a compulsory interview when a company is being investigated for any breach of the corporations law or any potential offences.
- ASIC interviews are compulsory.
- You have the right to have your lawyer present.
- You must answer every question unless you choose to claim legal professional privilege.
What is legal professional privilege?
Claiming privilege against self-incrimination is your legal right in ASIC interviews, however, you must claim privilege for all questions put to you. It is not sufficient to claim privilege at the beginning of the interview.
It must be claimed before each answer:
Q: “What is your current place of employment?”
A: “Privilege. I work at …”
Q: “What is your position there?”
A: “Privilege. I am the General Manager…”
Understanding how to claim privilege is imperative before undertaking the interview. Failure to state “privilege” before giving your answer means that without privilege, ASIC can use the information against you in future criminal proceedings. It is important to have legal counsel with you during an interview or seek legal advice before attending an interview.
Giving false or misleading information to ASIC in an interview is an offence and you will be prosecuted by ASIC. Even if you are not the primary target of the investigation, anything you say in an ASIC interview must be considered carefully.
You have received a notice to attend an ASIC interview. What do you do?
- Remain calm.
- Read the notice thoroughly.
- Try to gain as much understanding or concept of what ASIC are interested in speaking to you about.
- Speak to a lawyer and consider having them attend the interview with you.
- Your lawyer cannot be involved in the questioning, but can clarify things with ASIC, ensuring your interests are protected during ASIC interviews. Also, having legal support there may alleviate some of the anxiety that an interview of this nature can initiate.
- Allow quite a few hours for the interview.
- The process can be long and trying, it takes some time for the investigators to advise you of your rights and set up the recording equipment before the interview commences. It will only exacerbate any stress you may be under to be running late for another appointment.
Now for the interview. What can you expect?
- The interview takes place in private and will commence with a number of warnings.
One of them will relate to the confidentiality of the interview. Discussing your interview with any person is forbidden for a prescribed period of time. This does not extend to your lawyer if they are with you during the interview. You have the right to have a lawyer present at the interview. If your lawyer is not present, you should ask that the confidentiality notice is amended so that you can discuss your interview with your appointed lawyer.
- Listen carefully to the questions you are asked.
Answer the questions as clearly and briefly as possible. Do not add, elaborate or clarify. The less you say, the better. If the investigators need clarification of an answer, let them ask.
- Tell the truth.
ASIC’s powers are far-reaching, so if you try to mislead them, they will catch you out as chances are they are already in possession of a document or have already interviewed other parties involved that can substantiate a line of questioning or allegation. If the interview is taking a considerable amount of time and you feel that you are losing focus, you may ask for the interview to reconvene at another time. It is not uncommon for an investigation to comprise many interview sittings.
What happens after an ASIC interview?
- You may be requested in the interview to gather documents to present to ASIC.
If you have not engaged a lawyer at this point, now may be the time to consider it. Confidentiality prevents you from discussing the interview with anyone other than your lawyer, who can contact ASIC and ask permission to discuss the interview with you in a lawyer-client capacity. This type of request is rarely opposed.
A transcript of the interview will be sent to you to review and sign. You may correct any typographical or clerical errors only. It may be used in evidence against you or others in criminal proceedings, except for answers where you have claimed privilege.
Any errors that you become aware of post-interview should be clarified directly with ASIC in writing immediately.