January - February 2016 Industry Update

FWBC's compulsory powers explained

When investigating a complaint, FWBC inspectors use all avenues available to them to acquire information from people who are willing to provide it on a voluntary basis. If these avenues are exhausted, the Director may consider using the agency’s compulsory examination powers.

In the first two months of 2016, FWBC initiated eight new court proceedings. The agency relied upon its compulsory examination powers to progress a number of these matters. In fact so far in the 2015/16 financial year, the Director has conducted 12 examinations. This compares to 14 examinations in 2014/15 and four examinations in 2013/14.

There has been some discussion and some misconceptions regarding FWBC’s compulsory examination powers in recent months.

A number of federal agencies have compulsory examinations powers including the Australian Taxation Office, Australian Competition and Consumer Commission, Australian Securities and Investments Commission and the Australian Crim Commission. There are some variations in how the compulsory examination powers works between agencies, indeed FWBC’s powers have more safeguards than other Commonwealth bodies.

For FWBC to initiate a compulsory examination the agency must apply to the Administrative Appeals Tribunal (AAT) but only after all other avenues to obtain information have been exhausted.

If you are required to attend a compulsory examination you, or your legal adviser will be provided with a notice by the FWBC Director. The notice will have been issued by a Presidential Member of the AAT.

You will be given at least 14 days’ notice to attend an examination and you are entitled to bring legal representation. In fact, FWBC will pay for an interviewee’s lawyer along with any other reasonable costs the interviewee incurs as a result of their attendance at an examination.

Evidence obtained through a compulsory examination cannot be used against an interviewee in court. The only exceptions to this rule are if the action related to failing to comply with the examination notice, knowingly providing false or misleading information or obstructing and official in the performance of their official duties.

Interviewees will be provided with a transcript of their interview and there are no restrictions preventing the interviewee from disclosing information from their examination.

For more information on FWBC’s compulsory examination powers, please call our hotline on 1800 003 338 or click here

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