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 [2012] 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 undertaking.
Implications
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 preparing.
On the other hand, the decision may assist insolvency appointees and other persons seeking evidence to support claims against directors.
Footnotes
1 ASIC Act 2001 (Cth) s.19
2 ASIC Act 2001 (Cth) s.25
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