You know you live in a police state when …

This is Section 19 of the ASIC Act:

Notice requiring appearance for examination
(1) This section applies where ASIC, on reasonable grounds, suspects or believes that a person can give information relevant to a matter that it is investigating, or is to investigate, under Division 1.

(2) ASIC may, by written notice in the prescribed form given to the person, require the person:

(a) to give to ASIC all reasonable assistance in connection with the investigation; and
(b) to appear before a specified member or staff member for examination on oath and to answer questions.

Note: Failure to comply with a requirement made under this subsection is an offence (see section 63).

(3) A notice given under subsection (2) must:

(a) state the general nature of the matter referred to in subsection (1); and
(b) set out the effect of subsection 23(1) and section 68.

Note that this is not based on a court order.  Note that there is no right to silence or right to non self incrimination.  And note also that failure to assist ASIC is an offence.

Yes.  Spartacus does know that this is Australia and that there is no Bill of Rights here.  But that is the point.

See for example ASIC’s latest media announcement of 14.41 (AEST) on 6 September 2018 where a Former company director convicted for failing to assist ASIC.

The verbatim words within ASIC’s media announcement follow:

ASIC has coercive powers under the ASIC Act to allow it to perform or exercise its functions and powers, including the service of Notices on persons to attend examinations.

Failing to comply with a Notice is a criminal offence under s.63 of the ASIC Act and carries a maximum penalty of 100 penalty units or imprisonment for two years, or both.

For those who claim ASIC does not have the powers necessary to deal with financial services misconduct, they are kidding themselves.  Whether ASIC should have those powers is a completely different matter.  What further powers does ASIC require?  Enhanced interrogation?

Citizens should always remember that no one should be trusted with this kind of power. And nobody who seeks this kind of power should be trusted with any power at all.  It seems however ASIC only uses such powers when there is a legal resources asymmetry well favouring ASIC.

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17 Responses to You know you live in a police state when …

  1. Mark Fine

    It is worse than that! I have personal experience where the transcript from a S. 19 examination is forwarded to a third party ( eg a liquidator) who asks for it to assist them ( the third party) to bring proceedings against you……even though you had no normal legal protections such as avoiding self incrimination or any sense of natural justice…they ask if you have any objection to the provision of the transcript but then provide it anyway! It is third world stuff but out of sight of most people

  2. .

    Wow.

    I thought our civil forfeiture laws were bad.

    I hope this gets challenged one day as an affront to an independent judiciary.

  3. I thought our civil forfeiture laws were bad.

    I hope this gets challenged one day as an affront to an independent judiciary.

    A legal framework brought to you by John Winston Howard and Peter Howard Costello.

  4. Atoms for Peace

    Sorry, I don’t recall. Ad nauseum whilst chewing raw garlic and having stepped in dog crap.

  5. Suburban Boy

    This is neither anything new (ASIC has had this power since it was formed in 1991 so you can’t blame Howard or Costello) nor particular to ASIC.

    Here is a list of Commonwealth law enforcement bodies with similar powers: ACC, ACLEI, ACCC, APRA, Austrac, ATO, ABCC, TGA and ACMA (yes, the mob that recently decided “Sunrise” was guilty of hate speech).

    More remarkably, in the US the normal law enforcement bodies (such as the FBI) can compel people to give evidence under oath to assist an investigation (something that does not apply to normal law enforcement bodies in Australia).

    In general the privilege against self-incrimination applies (it does in the US, for instance). However, as Spartacus pointed out, ASIC (and some other bodies) have the additional power to compel admissions that tend to incriminate (see section 68 of the ASIC Act for instance).

    These laws are periodically reviewed (see ALRC Issues Paper 33, Client Legal Privilege and Federal Investigatory Bodies, 2007, for a good overview). It doesn’t make them right, but they are now cemented into the system. Good luck prising them out.

  6. .

    This is why we need sunset clauses on all legislation.

  7. Colonel Crispin Berka, Kings' Fusiliers Corps.

    You know you live in a police state when …
    …you are put under total surveillance.

    Here is more news worthy of your attention. First the satirical video to get you stoked.

    Honest Government Ad | Anti Encryption Law

    https://www.youtube.com/watch?v=eW-OMR-iWOE

    Regarding the probability these powers will be used sparingly and in line with community standards, here is some sobering background analysis from 2016 which is just as relevant today for the legal environment this proposed law will join. https://www.lawfareblog.com/executive-oversight-intelligence-agencies-australia

    Another key weakness is that independent office-holders like the INSLM have no remedial powers. Of course, statutory office-holders could not have remedial powers along the lines of those possessed by a court, but too frequently the recommendations of these bodies are simply ignored by government.
    It is also difficult to gauge the effectiveness of these oversight mechanisms because they frequently rely on classified information provided by the intelligence agencies. This means that the Australian public must often trust, rather than know, that the intelligence agencies are being held to account.

    You cannot encrypt exp1osives, missing children, or drugs. There will always be physical evidence of these related crimes which allow them to be prosecuted in court regardless of whether the communication about them is encrypted. We are being asked to give up all of our privacy all of the time so that a tiny percentage of thoughtcrimes can be detected before they escalate into actual crimes. That is not a good deal.
    The excuse of national security also will not work, because these threats to the privacy and information security of each citizen must sum to a national security threat in itself.

    Finally you can email your own appraisal of this new law to the Department of Home Affairs before next Monday. You can use DRW’s email form to help you do that if you wish: https://digitalrightswatch.org.au/2018/08/19/defend-encryption/
    Please don’t let the Greens and the Labor party be the only political bloc speaking up against these new government powers. Gotta use that democracy while we still have it.

  8. Pyrmonter

    S 68 speaks for itself – it prevents the misuse of transcript.

    If ASIC isn’t to have such a power, how do you think frauds and misconduct will be investigated? Time was, the courts supervised some of this stuff, but that gives rise to tricky independence issues: have a look at Loewenstein.

    I’ll add that I’m among the last to defend ASIC; it’s generally useless. But not because it lacks powers to do its job.

  9. Iampeter

    Ah yes. Just more of that “small government” stuff brought to you by “The Last Truly Conservative Australian Government”, according to Cory Bernardi.

  10. Pyrmonter

    And the problem is?

    S 19 follows the form of inquisitorial powers granted to regulators for at least the past 60 years, and court-appointed insolvency practitioners for several centuries; indeed, it’s only in the past 30 years or so that examination of the directors of failed companies and bankrupts has become uncommon (until 1968, it was automatic in the case of bankrupts). The removal of the right to refuse to answer questions for reasons of self-crimination is balanced by the provision that where the examinee asserts the possibility of self-incrimination, the material cannot be used in criminal proceedings – the surrender is consequently heavily qualified: see s 68 – http://www6.austlii.edu.au/cgi-bin/viewdoc/au/legis/cth/consol_act/asaica2001529/s68.html

    ASIC’s powers are investigative; it can’t (at this point – there is a proposal afoot to change it) make orders for the transfer of property or the reversal of insolvent or fraudulent transactions. As with all federal government officers, the purpose and operation of ASIC’s investigations is subject to review by the Federal Court and/or AAT. What exactly is the problem?

  11. .

    The problem is that it is a huge departure from the common law that A V Dicey, for example, wrote about – and it was a fundamental underpinning of our liberties.

    the material cannot be used in criminal proceedings

    Prosecutorial misconduct is an increasing problem, I think this is provision is so weak as to become meaningless.

  12. .

    How exactly does the ASIC Act impliedly repeal the Evidence Act? I’ll believe that if judges routinely follow the rule. The EA is so broad and vague at times that it basically allows for interstitial repeal of the protections under the ASIC Act.

  13. But asic certainly does not need more powers.

  14. .

    Sure, ASIC actually investigates corporate fraud for the most part and no one would argue for corporate fraud, but s 68 really needs to be quite explicit in that it prevents the EA or similar common law or statutory powers from being misused to get around the ASIC Act.

    There is a lot of scope for broad discretionary powers for the judges and tendency evidence etc.

  15. Pyrmonter

    The problems with ASIC don’t relate to want of power.

    But would you have those investigative powers given to someone else? Look at the mess the old bankruptcy system had with Lowenstein (essentially the bankruptcy judge doing what ASIC is upooised to do now)

  16. Pyrmonter

    I’ve never heard of anyone trying to get around s 68. The controversy arises from the embarrassment of exposure to civil proceedings. Lots of people dislike that: incompetent auditors, directors with doubtful conduct. I don’t think they need protection. S 19 isn’t. ‘At large’ – it relates to limited ASIC investigations; I might wish they regulated a lot differently; but it doesn’t (for example) allow people to pursue political vendettas.

  17. mundi

    So what if we decided that the police had the right the right to question you about your driving, were you were speeding? Did you speed today? Did you change lanes without using an indicator. But its ok because they will not have the power to take your money – that will just be up to a judge.

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