The ASIC Act 2001 (Cth) gives ASIC power to conduct
compulsory examinations 1 . An examinee has a claim to
protection of confidentiality 2 .
This is not unqualified. Courts allow the transcripts to be
accessed. Where ASIC produces documents in compliance with a
subpoena or other order, the protection of confidentiality is
controlled by the court, not ASIC.
In Gothard v. Fell: Allco Finance Group Ltd  FCA
495 the receivers of Allco Finance Group applied to examine
directors of Allco who had previously been examined by ASIC under
s.19 of the ASIC Act. The receivers issued a subpoena to ASIC for
transcripts of the examination and asked to be excused from
confidential undertakings with respect to the use of that material.
The directors opposed the application.
The Federal Court permitted the receivers' application on
the basis that "special circumstances" existed. A
balancing exercise must be undertaken to consider whether justice
is better served by releasing or maintaining confidentiality
undertakings. The transcripts were being used to determine whether
to pursue proceedings against the former directors, which was
consistent with the purpose for which the examinations were
conducted. The Court therefore had power to vary the confidential
Examinees may be concerned they are harming themselves by
providing information under compulsory examination to ASIC. Whilst
examinees have the perceived protection of the examination
remaining confidential, the decision above calls into question the
extent of that protection. Examinees cannot avoid compulsory
examinations nor refuse to answer questions, however can protect
themselves to some extent by claiming privilege from self
incrimination, obtaining suitable legal representation and properly
On the other hand, the decision may assist insolvency appointees
and other persons seeking evidence to support claims against
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