Australia: Internal investigations of organisations – a sword or shield?

Last Updated: 15 January 2015
Article by Howard Rapke and Roxanne Burd

Most Read Contributor in Australia, September 2016

Faced with a high-profile investigation by the regulators, several organisations have recently decided to also conduct their own internal investigations.

The Commonwealth Bank of Australia (CBA) and Essendon Football Club are two such cases where double-whammy external and internal investigations have opened up the organisations to significant scrutiny.

The CBA's investigation focussed on its financial products and advisors and the Essendon Football Club conducted a review of its governance processes and supplements program.

In both instances independent internal inquiries were commissioned separately from the investigations being carried out by the relevant regulatory bodies.

With so much at stake and such a high-level of media scrutiny, it's essential that all companies have a plan in place should an internal investigation need to be conducted.

It is essential to consider the issues and potential risks to be investigated, define the scope of the inquiry and take into account all relevant and necessary stakeholders.

Set out below are four key factors that are essential to conducting a successful internal investigation.

Establishing the investigation - who, what, when and how

No two investigations are the same, however at the outset it is imperative to define and articulate the scope and objectives of the investigation, how it will be run and by whom, and when the final report will be due and published.

At the outset, the organisation must make the difficult decision of determining whether the investigation is to be a time effective "desk top" review of a particular matter or whether it is to be an in-depth inquiry searching for the "smoking gun" akin to a regulatory investigation.

Careful consideration should be given to the team responsible for the investigation. Will your organisation need to engage an independent person with sufficient experience and credibility to consider the relevant issues and make recommendations or will it be sufficient to have the inquiry run by a team of senior employees? In addition, it will be necessary to draw together a supporting team with defined roles which may involve executive, legal and accounting members.

A judgment call will need to be made promptly to determine whether the investigation will be covert or overt in nature. This decision will determine whether the investigation is announced publically, and if so how.

The investigation

Once the scope and team are established, the next crucial step is to marshal, secure and analyse the evidence. People may need to be interviewed, documents will need to be reviewed and in a technologically evolving world many different forms of data may need to be obtained and scrutinised.

One relevant and important matter is the question of legal professional privilege and how it is to be preserved, if at all. Where a matter is time sensitive or potentially problematic, allegations risk being made public and investigations may be initiated without prior thought being given to whether legal professional privilege can or should be maintained over the inquiry. This may become very important at a later stage should a government regulator become involved or litigation ensue.

Coordinating the investigation between the relevant company officers, including in-house counsel, external counsel and forensic accountants will be crucial if the investigation is of some size and scope. There is a clear need to coordinate all of these resources to ensure that: the outcomes are sufficiently objective and independent; all relevant expertise is brought to bear; there is no duplication of resources; and, if applicable, the question of legal professional privilege and confidentiality are properly understood and followed.

The report

Irrespective of the public or private nature of the final report any relevant document must necessarily set out the scope of the investigation, the procedures followed, the findings and any recommendations to reduce the risk of a similar occurrence in the future.

The outcome

Finally, it is crucial to make proper use of the investigation and its findings. In our experience, this would involve consideration of applicable laws, company governance, policy and procedure, and the role of all relevant stakeholders or regulators.

Internal investigations may result in negative findings or recommendations for substantial change. The adequacy of current compliance programs and existing policies and procedures may be questioned. Organisations need to be prepared for close scrutiny and to make changes that are in the best interests of the company.

A credible investigation can assist a company in meeting serious allegations. In order to achieve its intended outcome it is necessary that any internal investigation is carefully established, adequately resourced, conducted impartially, the findings taken into account and recommendations enforced by the CEO down. Doing so may assist in restoring both corporate and individual reputations in addition to informing relevant stakeholders that the organisation has recognised a problem and intends to do something about it.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Mondaq Advice Centre (MACs)
Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.