Australia has numerous regulatory and government bodies with extensive coercive powers, including specific regulators for sectors including health, financial services, energy, higher education, not-for-profit and aged care. Investigations undertaken by the various regulators often relate to employee behaviour and actions which may involve misconduct. It's crucial for employees who are subject to, or anticipate being subject to, an investigation by a regulator to seek legal advice to protect their interests.
There are a number of regulatory bodies whose investigative powers intersect with workplace and work-related activities. These include, for example:
- APRA (Australian Prudential Regulation Authority);
- ASIC (Australian Securities Investment Commission);
- AHPRA (Australian Health Practitioner Regulation Agency);
- ATO (Australian Taxation Office);
- ACCC (Australian Competition and Consumer Commission); and
- work health and safety regulators in Australian states and territories (for example, WorkSafe Victoria, Work Health and Safety Queensland).
These regulators have quite extraordinary powers to monitor compliance and to investigate suspected misconduct and contraventions. Receiving formal notice or being the subject of, or even simply assisting an investigation by a regulator can be stressful and time-consuming. Seeking legal advice if you're a party to an investigation can assist in protecting your interests.
The information below is a general guide to dealing with regulators. Each regulatory body will have its own processes and procedures.
Information gathering by regulators – is it a voluntary or compulsory process?
Typically, a regulator will have the power to:
- require production of documents;
- compel disclosure of information; and/or
- require an individual to attend for examination or provide assistance with an investigation.
Some regulators may also have the power to undertake surveillance, enter and search premises (with or without notice), seize documents or records, and interview individuals.
Regulators often seek to obtain information informally. Different protections, or no protection at all, may attach to information provided to a regulator voluntarily. If you are unsure, at any point, whether you are required to provide information or participate in an examination, you should seek legal advice.
If a regular has made contact with you, and you have been asked to provide information, it is important to consider and understand whether the regulator is making an informal request or if it is a formal requirement and you are compelled by law to provide the information sought by the regulator.
Significant penalties, including imprisonment in some cases, can apply for failing to comply with a formal requirement to provide information or documents to a regulator.
Many regulators have the power to compel an individual to attend an examination and answer questions under oath or affirmation. Notice to attend for examination is usually provided in writing. Again, as the powers of different regulators may differ, if you are unsure if you are required to attend for examination or answer questions, you should seek legal advice.
Typically, if you are required by a regulator to provide information or answer questions as part of an investigation, strict confidentiality obligations may apply. This usually means that you will be forbidden from discussing the investigation and your examination with anyone except your lawyer.
Right to refuse due to self-incrimination
Depending on the regulator and the statutory framework that applies, you may have a right to refuse to answer certain questions on the basis that the answer to the question would disclose information that may tend to incriminate you.
However, section 287 of the Superannuation Industry (Supervision) Act 1996 (Cth) and section 52F of the Banking Act 1959 (Cth), for example, provide that self-incrimination is not a reasonable excuse for a person to refuse to answer a question.
A claim for privilege against self-incrimination under these statutory frameworks does not provide a person with the right to refuse to answer a question. Notably, however, an answer to a question that may tend to incriminate you is generally not admissible in evidence against the person in a criminal or penalty proceeding.
Information you provide to a regulator may be shared with a third party
It is important to remember that the information you provide during an investigation may later be used in court if the regulator decides enforcement action is necessary. You may also be subpoenaed to give evidence in court at a hearing of the matter.
In many instances, other regulators and agencies, and even third parties, can request or be provided access to information obtained in the course of an investigation. For example, in Victoria, AHPRA may disclose information to Victoria Police where there is an allegation or evidence of an indictable or summary offence having occurred in the course of a registered practitioner's practice.
Likewise, other regulators may be required to disclose information to police where there is evidence or suspicion of criminal activity.DOWNLOAD AS PDF
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.