Australia: Caught in the cross-fire: self-incrimination in a regulatory investigation

Key Points:

Despite being eroded in some circumstances, the privilege against self-incrimination remains an important protection for individuals in regulatory investigations, but early legal advice is crucial.

In recent years, Australia's regulators have approached corporate investigations with increasing sophistication. They have broad powers to investigate corporate activity, including powers to order production of documents or disclosure of information, to compel individuals to attend examinations, and to commence court proceedings in the case of suspected contraventions of the law.

Despite the focus on corporate conduct, individuals, including directors and officers, are often caught in the cross-fire. Where an individual is required by a regulator or court to give evidence, produce a document or provide information, they should consider whether to claim the privilege against self-incrimination (or the related privilege against self-exposure to a civil penalty) in respect of their responses to the regulator or their evidence to the court.

This article explains when and how individuals can rely on the privilege against self-incrimination and identifies some of its limitations.

What is the privilege against self-incrimination?

The general rule is that an individual is not bound to answer a question or produce a document if the answer or document would have a tendency to expose them, directly or indirectly, to a criminal conviction or a civil penalty. Legislation (for example, the ASIC Act) alters the position in some circumstances.

The privilege helps prevent abuse of power by the state, and reflects the norm that those who allege the commission of a crime should prove their case and be prevented from compelling accused persons to provide evidence against themselves. Importantly, the privilege can only be claimed by individuals; it cannot be claimed by a corporation.

The privilege operates differently depending on whether the documents or information are being sought during a regulatory investigation or during enforcement proceedings in court. This article focuses on the approaches taken by ASIC and the ACCC, in regulatory investigations.

Self-incrimination in an ASIC investigation

Where ASIC is using its powers to compel a person of interest to attend an examination, it is possible that person will be concerned that they might incriminate themselves by answering certain questions on oath or affirmation during the investigation.

In subsection 68(3), the ASIC Act recognises the privilege against self-incrimination and limits the extent to which statements made during the examination or the signing of a record can be used as evidence against the person in a subsequent criminal proceeding or in a proceeding for the imposition of a penalty (although there are exceptions under section 1349 of the Corporations Act for certain types of penalty proceedings such as those seeking a disqualification order or a banning order).

To claim the privilege against self-incrimination during an ASIC examination, the person should say the word "privilege" prior to providing each potentially incriminating answer. It is important to note, however, that under subsection 68(1), the privilege cannot be relied upon as grounds for refusing to give information, sign a record or produce a book to ASIC.

Regardless of whether the privilege is claimed, any admission or document provided by a person might still be used against the company itself, especially if the person is a director or officer of the company.

Self-incrimination in an ACCC investigation

Where the ACCC believes that a person has information relating to a possible contravention of competition laws, it may issue a notice (known as a section 155 notice) requiring the person to furnish information, produce documents or attend an examination. Again, questions of self-incrimination may arise.

As with an ASIC investigation, a person will not be excused from producing a document or furnishing information on the ground that it might incriminate them (or expose them to a penalty). However, any potentially incriminating answer or information provided by the individual cannot be used against them in criminal proceedings (except for specific types), but the statement can be used against the corporation itself, as the corporation cannot claim the privilege.

Self-incrimination in enforcement proceedings

Regulatory investigations sometimes result in regulators seeking criminal sanctions or civil penalties by way of enforcement proceedings in court. Where individuals are to be defendants (or even simply witnesses), issues surrounding the privilege against self-incrimination can arise, and may be complicated by the fact that the corporation and its directors or officers might be co-defendants in the same proceedings. In practice, this may see admissions by the corporation, which cannot claim the privilege against self-incrimination, taint the defences of officers or employees who have claimed the privilege.

Those complexities have led different courts to adopt different procedures in their attempt to protect the rights of the individual in the enforcement context. Courts have been known to relieve defendants from giving discovery or allow defendants to hold off on serving affidavit evidence until after the regulator has closed its case and have granted certificates to witnesses who have established a legitimate claim for self-incrimination privilege.

Nevertheless, the court has to balance the individual's rights against the effective implementation of the regulatory regime. The practical effect is that the privilege is often weakened indirectly, especially if the corporation is ordered to produce documents which tend to incriminate the individual.

Key points to remember about the privilege against self-incrimination

Despite being eroded in some circumstances, the privilege against self-incrimination remains an important protection for individuals in regulatory investigations. By seeking legal advice early, individuals can maximise their level of protection. Likewise, companies should carefully consider their responses to the demands of regulators and courts, to avoid any unnecessary exposure of officers or employees.

  1. The privilege against self-incrimination can only be claimed by individuals, not by corporations.
  2. Even where the individual successfully claims the privilege, any admissions they make can amount to an admission by the corporation, especially if the individual is a director or officer of the corporation.
  3. The privilege only protects against self-incrimination, so can only be claimed by the person providing the incriminating information. As a result, information provided by one person who has claimed the privilege can be admitted as evidence in subsequent proceedings against another person, who is not protected by the privilege.
  4. To maximise the chance of making a successful claim of privilege against self-incrimination, individuals should avoid voluntarily providing information or documents to a regulator (which has the effect of waiving the privilege). Instead, the individual should ask the regulator to issue a Notice compelling the individual to comply.
  5. Where possible, corporations under investigation should try to avoid taking steps which incriminate individuals. If the corporation discloses evidence which may incriminate the individual, then that evidence can be used against the individual.
  6. In the case of Notices issued by ASIC or the ACCC, individuals must still disclose the information being sought, even if they make a successful claim for self-incrimination privilege. However, a claim for privilege may limit the extent to which ASIC or the ACCC can use that evidence against the individual in criminal or civil penalty proceedings.
  7. Courts are usually concerned to preserve an individual's privilege against self-incrimination, but in practice, the privilege against self-incrimination is sometimes weakened as the courts strive to balance the rights of the individual against the need to effectively implement the regulatory regime.

You might also be interested in...

Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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”

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.