Corporations Legislation (Evidence) Amendment Act 1992

No. 27 of 1992

An Act to amend the Australian Securities Commission Act 1989, and to change the Corporations Law, in relation to the privilege against self-incrimination

[Assented to 14 May 1992]

The Parliament of Australia enacts:

PART 1—PRELIMINARY

Short title

1. This Act may be cited as the Corporations Legislation (Evidence) Amendment Act 1992.

Commencement

2. This Act commences on the day on which it receives the Royal Assent.

PART 2—AMENDMENTS OF THE AUSTRALIAN SECURITIES
COMMISSION ACT 1989

Principal Act

3. In this Part, "Principal Act" means the Australian Securities Commission Act 19891.

Self-incrimination

4. Section 68 of the Principal Act is amended by omitting subsections (2) and (3) and substituting the following subsections:

"(2) Subsection (3) applies where:

(a) before:

(i) making an oral statement giving information; or

(ii) signing a record;

pursuant to a requirement made under this Part, Division 3 of Part 10 or Division 2 of Part 11, or under a corresponding law of another jurisdiction, a person (other than a body corporate) claims that the statement, or signing the record, as the case may be, might tend to incriminate the person or make the person liable to a penalty; and

(b) the statement, or signing the record, as the case may be, might in fact tend to incriminate the person or make the person so liable.

"(3) The statement, or the fact that the person has signed the record, as the case may be, is not admissible in evidence against the person in:

(a) a criminal proceeding; or

(b) a proceeding for the imposition of a penalty;

other than a proceeding in respect of:

(d) in the case of the signing of a record—the falsity of any statement contained in the record.

"(4) Subsections (2) and (3), as in force after the commencement of section 4 of the Corporations Legislation (Evidence) Amendment Act 1992, apply in relation to a requirement made, as mentioned in paragraph (2)(a) of this section as so in force, at or after that commencement.

"(5) Subsections (2) and (3), as in force before that commencement, continue to apply in relation to a requirement made, as mentioned in paragraph (2)(a) as so in force, before that commencement.".

Statements made at an examination: proceedings against examinee

5. Section 76 of the Principal Act is amended by omitting paragraph (1)(a) and substituting the following paragraph:

"(a) because of subsection 68(3), the statement is not admissible in evidence against the person in the proceeding;".

PART 3—CHANGES TO THE CORPORATIONS LAW

Corporations Law

6. In this Part, "Corporations Law" means the Corporations Law set out in section 82 of the Corporations Act 19892.

Examining a person about a corporation

7. Section 597 of the Corporations Law is amended:

(a) by omitting subsection (12) and substituting the following subsections:

"(12) A person is not excused from answering a question put to the person at an examination held under an order under subsection (3) on the ground that the answer might tend to incriminate the person or make the person liable to a penalty.

"(12A) Where:

(a) before answering a question put to a person (other than a body corporate) at an examination held under an order under subsection (3), the person claims that the answer might tend to incriminate the person or make the person liable to a penalty; and

(b) the answer might in fact tend to incriminate the person or make the person so liable;

the answer is not admissible in evidence against the person in:

(d) a proceeding for the imposition of a penalty;

other than a proceeding under this section, or any other proceeding in respect of the falsity of the answer.";

(b) by omitting from subsection (14) "(12)" and substituting "(12A)".

8. After section 1316 of the Corporations Law the following section is inserted:

Privilege against self-incrimination not available to bodies corporate in Corporations Law criminal proceedings

"1316A.(1) In a Corporations Law criminal proceeding, a body corporate is not entitled to refuse or fail to comply with a requirement:

(a) to answer a question or give information; or

(b) to produce a book or any other thing; or

on the ground that the answer or information, production of the book or other thing, or doing that other act, as the case may be, might tend:

(d) to incriminate the body (whether in respect of an offence to which the proceeding relates or otherwise); or

(e) to make the body liable to a penalty (whether in respect of anything to which the proceeding relates or otherwise).

"(2) Subsection (1) applies whether or not the body concerned is a defendant in the proceeding or in any other proceeding.

"(3) In this section:

'Corporations Law', in relation to a jurisdiction, has the same meaning as in Division 2 of Part 9 of the Corporations Act 1989;

'Corporations Law criminal proceeding' means:

(a) a proceeding in a court when exercising jurisdiction in respect of a criminal matter arising under the Corporations Law of this jurisdiction; or

(b) a proceeding in a court of this jurisdiction when exercising jurisdiction in respect of a criminal matter arising under the Corporations Law of any jurisdiction.".

9. After Division 3 of Part 9.11 of the Corporations Law the following Division is inserted:

"Division 4—Changes resulting from the Corporations Legislation
(Evidence) Amendment Act 1992

Changes to section 597

"1370.(1) Subsections 597(12) and (12A), as in force after the commencement of section 7 of the Corporations Legislation (Evidence) Amendment Act 1992, apply in relation to a question put, at or after that commencement, at an examination held under an order under subsection 597(3) of this Law, even if the examination began before that commencement.

"(2) Subsection 597(12), as in force before that commencement, continues to apply in relation to a question put, before that commencement, at an examination held under an order under subsection 597(3).

Application of section 1316A

"1371. Section 1316A applies in relation to a requirement made at or after the commencement of section 8 of the Corporations Legislation (Evidence) Amendment Act 1992, even if the proceeding concerned began before that commencement.".

PART 4—REVIEW OF EFFECTS OF THIS ACT

Minister to arrange for review and report

10.(1) The Minister must cause a person to review, and to report to the Minister in writing about, the operation of the following provisions ("the amended provisions"):

(a) section 68 of the ASC Law of each State and internal Territory, as in force after the commencement of this Act;

(b) sections 597 and 1316A of the Corporations Law of each State and internal Territory, as in force after the commencement of this Act.

(2) The person must be someone who, in the Minister's opinion, is suitably qualified and appropriate to conduct the review.

(3) The review and report must relate to the period beginning at the commencement of this Act and ending after the period of 4 years and 6 months.

(4) The person must give the report to the Minister as soon as practicable, and in any event within 6 months, after the end of that period.

(5) The review and report must include an assessment of:

(a) how much, and in what ways, the amended provisions have helped in the enforcement of national scheme laws (as defined in section 5 of the Australian Securities Commission Act 1989); and

(b) how much, and in what ways, the amended provisions have helped the Australian Securities Commission in making investigations and gathering information; and

(c) the extent (if any) to which persons, to whom the amended provisions have applied, have been unjustifiably prejudiced because of the enactment of sections 4, 7 and 8 of this Act; and

(d) the changes (if any) to administrative arrangements made for the purposes of national scheme laws that have resulted from the amended provisions.

(6) The report may include suggestions for changes to national scheme laws that, in the person's opinion, are needed to overcome, or would help overcome, problems identified during the review and set out in the report.

(7) The person must provide a reasonable opportunity for members of the public to make submissions to him or her about matters to which the review relates.

(8) The Minister must cause a copy of the report to be laid before each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

NOTES

1. No. 90, 1989, as amended. For previous amendments, see Nos. 41 and 110, 1990; and Nos. 110, 122 and 188, 1991.

2. No. 109, 1989, as amended. For previous amendments, see No. 110, 1990; and Nos. 110, 200 and 201, 1991.

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[Minister's second reading speech made in—

House of Representatives on 26 February 1992

Senate on 1 April 1992]