13 July 2015 Industry Update

Compulsory powers extended

FWBC has compulsory examination powers to help in its investigative work, which mean it can compel a person to come and give evidence in an investigation. These powers were due to expire at the end of May this year.

The Parliament has voted for FWBC to keep its compulsory examination powers for another two years.

Australian Competition and Consumer Commission (ACCC) and Australian Securities and Investments (ASIC) have similar powers.

FWBC’s examination powers are more restricted than some other Commonwealth bodies, and are only used as a last resort. There are numerous safeguards that exist to protect people called in to compulsory examinations.

 

What you need to know about FWBC’s compulsory examinations powers:

·         FWBC can only compel someone to give evidence if it has a reasonable belief that person has information relevant to a current investigation.
 

·         The FWBC must seek approval from a presidential member of the Administrative Appeals Tribunal (AAT) stating the reasons it wants to compel a person to give evidence.
 

·         It is then up to the presidential member of the AAT to decide whether or not FWBC is allowed to use its compulsory powers to bring that person in as a witness to give evidence.
 

·         FWBC must give a person 14 days’ written notice to come in and give evidence.
 

·         Suspects of law breaking are never called to give evidence.
 

·         Information a witness provides in a compulsory examination cannot generally be used against them.
 

·         A witness can have a lawyer of their choosing at the compulsory examination.
 

·         FWBC pays for the witness’s legal costs in accordance with relevant legislation.
 

·         FWBC also pays for the witness’s reasonable out of pocket costs including travel and any lost income if they have to take time off work.
 

·         The witness is free to talk about the examination to others if they wish.
 

·         FWBC staff are banned from discussing the examination, to protect the witness. They face potential imprisonment if they do.
 

·         The FWBC Director has to report to the Commonwealth Ombudsman about every compulsory examination which takes place. This includes providing a video recording of the examination.
 

·         The Commonwealth Ombudsman reviews each report to make sure the examinations are being properly conducted and reports to the Parliament on this annually.

 

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