Corporations Legislation (Evidence) Amendment Act 1992

Overview

The Corporations Legislation (Evidence) Amendment Act 1992, enacted by the Parliament of Australia and assented to on 14 May 1992, was introduced to address the issue of self-incrimination in the context of corporate entities and their interactions with regulatory bodies such as the Australian Securities Commission (ASC). This Act amends both the Australian Securities Commission Act 1989 and the Corporations Law to ensure that corporate entities do not benefit from the privilege against self-incrimination during criminal proceedings, thereby promoting transparency and accountability. By removing certain protections against self-incrimination for bodies corporate, the Act aims to facilitate more effective enforcement of national scheme laws and support the ASC in its investigative and information-gathering functions. The Act specifies that statements made by individuals under examination, which might tend to incriminate them, are not admissible in evidence against them in criminal or penalty-imposition proceedings unless the proceeding concerns the falsity of the statement. Additionally, it ensures that corporate entities cannot refuse to provide information or evidence that might incriminate them during criminal proceedings under the Corporations Law. Furthermore, the Act mandates a review of its effects by a suitably qualified person, who must report on the impact of these amendments on law enforcement, the ASC’s investigative capabilities, and any potential prejudice to individuals affected by the changes. The Minister is required to table the review report before each House of the Parliament within 15 sitting days of receiving it.

Scope and Application

The Corporations Legislation (Evidence) Amendment Act 1992 amends the Australian Securities Commission Act 1989 and the Corporations Law, primarily to address the privilege against self-incrimination in the context of corporate entities. The Act applies to both natural persons and bodies corporate, focusing on their conduct within the scope of examinations and proceedings related to corporations. Its jurisdictional reach extends across all Australian states and territories, as it pertains to the enforcement of national scheme laws. Notably, the Act excludes certain types of evidence from being admissible in criminal proceedings or penalty imposition proceedings, except when it pertains to the falsity of the statements made or records signed. The application of the Act can be extended or further defined through subordinate instruments, though the primary text does not detail such extensions. The Act mandates a review of its effects four and a half years after its commencement, with the findings to be reported to the Minister and subsequently tabled in Parliament.

Key Provisions

• The Corporations Legislation (Evidence) Amendment Act 1992 primarily modifies the Australian Securities Commission Act 1989 and the Corporations Law to address the privilege against self-incrimination in criminal proceedings. Section 4 of the Act amends the Australian Securities Commission Act 1989 to exclude subsections (2) and (3) of section 68, which pertain to the admissibility of statements made by individuals who claim they might incriminate themselves. The new subsections clarify that such statements are inadmissible in criminal or penalty proceedings, except where the falsity of the statement or record is in issue. Section 76 of the Principal Act is also amended to ensure that statements not admissible under the revised section 68 are not admissible in proceedings against the examinee. In terms of the Corporations Law, section 7 of the Act modifies section 597 by removing the excuse for not answering questions at examinations on the ground of potential self-incrimination. It also inserts new subsections (12) and (12A) to provide that answers are not admissible in criminal or penalty proceedings unless the falsity of the answer is in issue. Additionally, section 8 introduces a new section 1316A, which denies bodies corporate the privilege against self-incrimination in Corporations Law criminal proceedings.
• The Act imposes several obligations on the parties it governs. Individuals who make statements under the Australian Securities Commission Act 1989 or during examinations under the Corporations Law must comply with the new rules regarding the admissibility of such statements in criminal or penalty proceedings. Bodies corporate are obligated to respond to requirements to answer questions, produce documents, or perform other acts during examinations, even if doing so might incriminate them, as the privilege against self-incrimination no longer applies in Corporations Law criminal proceedings. These obligations are designed to ensure transparency and accountability in corporate activities.
• The Act also outlines the consequences for non-compliance. While the Act itself does not specify penalties for breach, it introduces amendments to existing legislation which could result in criminal or civil penalties for non-compliance with the new requirements. For instance, providing false information in a statement or record could lead to criminal charges or penalties under the Corporations Law. Additionally, failure to comply with examination requirements could result in enforcement actions by the Australian Securities Commission.
• Lastly, the Act mandates a review of its effects. Section 10 requires the Minister to arrange for a review and report on the operation of the amended provisions. The review must assess the impact of the changes on the enforcement of national scheme laws, the effectiveness of investigations by the Australian Securities Commission, any potential unjust prejudice to affected persons, and any changes to administrative arrangements. The report must be laid before each House of Parliament within 15 sitting days of receipt, providing transparency and accountability in the implementation of the Act.

Legal classification tags

Area of Law

Corporate Law & Governance

Criminal Law

Evidence Law

Instrument

Act

Concepts

Commencement Provisions

Offence Provisions

Regulatory Standards

Review & Sunset Clauses