Category

General News

What You Need to Know About ASIC Investigations

By | General News

While most business owners strive to run their enterprise with minimum distraction from external agencies, the fact is we live in a highly regulated, legalistic society. For businesses, the Australian Securities & Investments Commission (ASIC) is Australia’s top company regulator and is responsible for investigating company misconduct and enforcing company law.

If you run a business and are served with a notice under Section 19 of the Australian Securities and Investment Commission Act, ASIC is asking you to provide it with information and may subject your enterprise to a compulsory examination. This is no trifling matter. Failing to reasonably cooperate in accordance with a Section 19 notice issued by ASIC can be a criminal offence that may be punishable by a term of imprisonment. For this reason, expert legal advice should immediately be sought.

How does an ASIC investigation start?

A complaint (usually about misconduct) is generally the starting point for an ASIC investigation into a company. There are a number of ways ASIC may receive these complaints, including:

  • From a member of the public, often a client or customer of the business who is dissatisfied with an aspect of the company’s handling of a particular matter.
  • A referral from other government agencies and regulators who may report misconduct to ASIC.
  • From reports ASIC receives as required by law, such as those from auditors, insolvency practitioners and licensees.

Once a complaint is received, ASIC will go through a process to work out whether it should investigate based on the scope of its powers, taking into account:

  • the extent of the harm or loss;
  • the benefits of pursuing the misconduct relative to the cost of public monies;
  • the type and seriousness of the misconduct alleged and the strength of evidence supporting the complaint;
  • alternative courses of action other than formal investigation;
  • whether the alleged misconduct includes a particular impact on market integrity or the confidence of investors and financial consumers;
  • whether or not the misconduct is a widespread concern or part of a growing trend.

What will happen during an investigation?

ASIC has a number of powers by which it will conduct an investigation to gather evidence, including requiring a business to produce documents and disclose other information for its inspection, requiring company officers or employees to attend compulsory examinations, and employing search warrants.

It should be noted that under a Section 19 notice, people other than company directors or employees such as the company’s lawyers and accountants can also be required to provide information and assistance. ASIC’s powers allow it to question people who “on reasonable grounds, [it] suspects or believes … can give information relevant to a matter it is investigating, or is to investigate”.

What are your rights and responsibilities in this situation?

Obviously if an ASIC investigation commences into your business, you should avail yourself of the advice of an experienced corporate law firm. Company officers and employees need to be aware of what they can and can’t do in complying with ASIC’s requests. There may be no legal basis for ASIC to request certain documents from you, particularly if they might incriminate you or the company in relation to your operations. You will not be required to produce documents, for example, which are the subject of legal professional privilege.

Take pre-emptive action

One thing your business can do to avoid or reduce the likelihood of an ASIC investigation is to discuss with your corporate lawyer how to develop proactive, effective and fit-for-purpose governance, risk and compliance processes within the organisation.

This process may include a review of your current documentation and policies in these areas, including asking your legal representative to conduct a legal risk assessment of the business. Undertaking this process will also be of benefit in demonstrating your proactive approach should an ASIC investigation later arise as the result of a complaint.

Penalties

ASIC has a number of remedies and enforcement tools at its disposal if it can prove the alleged misconduct. Most serious of these is punitive criminal penalties, which can include terms of imprisonment, community service orders, financial penalties under criminal law and the possibility of convictions.

Another option is ‘protective actions’ – such as disqualification from managing operations or revocation, suspension or variation of licenses, and public warning notices. While this option avoids the need for criminal penalties, the effects of a protective action can obviously still have terrible effects on the reputation of both yourself and your business.

An effective legal representative will also explore, before ASIC decides to proceed with an investigation, whether alternatives such as engagement with stakeholders, guidance, education and policy advice may be better and more effective options than enforcement action.

If you believe your business is about to become the subject of an ASIC investigation, or need more guidance on how compliant your business really is in terms of internal governance and the wider regulatory environment, contact experienced corporate law firm Hannay Lawyers today on (07) 3184 2323. We’ll be happy to assess your particular circumstances at our Brisbane or Gold Coast offices as soon as possible.

How to Apply for Bail in Queensland

By | Break & Enter Charges, Drug Charges, General News

Bail is a feature of our criminal justice system that allows a person to continue living in the community after they’ve been charged with an offence.

In precise technical terms, bail is the written undertaking the person charged with the offence signs, promising to appear at court at a date set down on the undertaking, also called a ‘Notice to Appear’. Bail is something a person needs to apply for and the conditions covering such an application are set out in the Bail Act 1980 (Qld).

Bail conditions can include such things as a reporting condition (requiring you to sign in at a police station on certain days of the week) and a residential condition (requiring you to reside at a stated address and not relocate without prior permission of the court or police).

Someone on bail must also undertake not to commit any further offences (that attract jail time) or face more severe penalties.

How does bail work if I’m arrested?

If you’re arrested by police they may then release you on ‘watch-house bail’ after you sign a bail undertaking to attend court on a certain date and comply with any further conditions on the undertaking.

If police refuse you bail, the next step is to apply for bail to the Magistrates Court where the matter will be dealt with more expeditiously and with less cost than in a higher court. If the Magistrate also refuses bail, you will be held in custody until the charges against you are finally dealt with or you then make a formal application to the Supreme Court. Where there are very serious charges involved – such as in domestic violence cases or other incidents of violence – you will need to demonstrate to the court why your detention in custody is not justified. If the Supreme Court refuses you bail, you can apply again, but you may be required to show a “material change of circumstances” – how things have changed before your first application and this one – as to why bail should now be granted.

What factors are taken into account in granting bail?

While there is generally a presumption in favour of bail, in cases where the charges are of a more serious nature the court will consider whether the person applying for bail constitutes “an unacceptable risk”.

This risk is assessed on numerous factors including:

  • The nature and seriousness of the offence;
  • the character and background of the defendant;
  • the history of any previous grants of bail to the defendant;
  • the strength of the evidence against the defendant;
  • whether a defendant will either fail to appear in court as required;

commit further offences; endanger the safety or welfare of a person; or,

interfere with witnesses or obstruct the course of justice.

A person may also be refused bail for their own protection. It’s important to note that at this stage of the process, the onus is on the police to show the court why it shouldn’t grant you bail.

The consequences of breaching bail

By not following the conditions of a bail undertaking, you risk arrest and will likely impair any future bail application you might make. It’s possible to face up to two years imprisonment for this offence alone.

Additionally, any money or other security lodged for the bail may be forfeited and the person who acts as surety for your bail may be ordered to pay the security sum to the court. If the surety fails to pay, the court can actually imprison that person for up to two years.

The court may listen to a ‘reasonable excuse’ for why bail conditions weren’t complied with, but this will require supporting evidence such as medical certificates. In this instance, experienced legal advice is highly advisable.

Certain breaches of bail will place the defendant in a ‘show cause’ position, where the onus is now on you – rather than the police – to show why you should be granted bail. These breaches include when you:

  • Fail to appear at court on the nominated date;
  • are charged with an indictable offence alleged to have occurred after you were granted bail for another offence;
  • are charged with an indictable offence involving weapons or a threat of violence committed whether the offence is alleged to have occurred before or after bail was granted;
  • being charged with an offence that has a maximum penalty of life or indefinite imprisonment, whether the offence is alleged to have occurred before or after bail was granted.

Can bail conditions be varied?

Under section 30 of the Bail Act, bail conditions can only be amended by the court or the police. If it’s by the police, your bail undertaking must state that police may grant variations, such as the condition about residing at a specific address.

If the bail undertaking does not allow variation, a court application must be made. Common requests for variation relate to the police station that you must report at, the days you must report, the number of days that you must report, and to change your residential address. The court will generally not reduce the number of days you’re required to report until your matter is past the committal stage but will take into account work and domestic commitments in making a decision.

Bail can be a complex legal matter which is why seeking prompt guidance from lawyers with experience in criminal matters is highly advised, so all options are explored in securing bail until your matter is properly heard in court.[/vc_column_text][/vc_column][/vc_row]

police search of your property

A Police Search of Your Property – What You Need to Know

By | Criminal Law, General News, Major Criminal Law

The police do not have limitless rights when it comes to searching people or their property.

Laws are in place to protect everyone – including you – from law enforcement officials overstepping their bounds. The following will give you the basics of your rights when it comes to a police search of your property.

The Police Don’t Always Need a Warrant

There are circumstances when the police can enter your home without requiring a warrant. These include –
– Handing over or serve a legal document
– In urgent circumstances, for example, injury to a person
– To investigate a traffic offence, for example, to take a breath test for alcohol
– To catch someone who has escaped from prison or from being arrested
– To search for evidence if they reasonably suspect it may otherwise be hidden or destroyed
– To arrest someone
– To reach a crime scene
– To detain someone under an anti-terrorism ‘preventative detention order’—if they reasonably believe that the person they’re looking for is on your property
But if none of these circumstances applies, and should they not have a warrant, you have a right to refuse entry to the police. All you need to do is clearly state that you do not grant permission for the police to enter your property, and if possible say so in front of a witness. Should the police still insist on entering, or if you disagree with the validity of their claims, contact your lawyer immediately.

Warrants Come with Terms and Conditions

Search warrants do not give the police blanket authority to do anything they want inside your home. The warrant will explain exactly what the police are allowed to do and may include digging up a portion of your property, opening locked items if needs be, searching individuals on the premises, or removing wall or ceiling panels. However, if it is not included on the warrant, then the police are not allowed to do it without additional authorisation. Ask for a copy of the warrant, and contact your lawyer.

The Police Can Only Stay for a ‘Reasonable’ Time

This means, that if the warrant to search your property says that the police can enter your home and arrest an individual, they can only stay for the time required to carry out that activity. It could be said that if the police then sit down and begin questioning the individual, that they have gone past the reasonable allocated time and could be asked to leave. In these circumstances, contact your criminal lawyer and ask their advice.

caught out drug driving

Drug Driving: Could YOU Be Caught Out 

By | Criminal Law, General News, Major Criminal Law

The number of drivers being charged with drug driving is on the rise.

Queensland Police have carried out a number of ‘blitzes’ and advertising campaigns designed to educate the driving public. Most people are now aware that roadside saliva tests can be carried out by police in the same way as an alcohol breath test. What is less well known is what substances the tests will identify, and what is considered an illicit drug.

1. Saliva Samples Don’t Test for Everything…Yet

At the moment, the saliva sample will test for known active ingredients in certain drugs –

  • Methylamphetamine – Speed or ice
  • MDMA—Active ingredient in ecstasy
  • THC—Active ingredient in cannabis

Of course, this test is always being improved, and it’s unsafe to assume that other drugs won’t be identifiable through a saliva sample in the near future. There may also be other tests introduced to broaden the number of testable substances.

2. Driving Under the Influence of Prescription Drugs

The Queensland Government warns members of the public not to drive under the influence of ANY substance – including some prescription medications.  It’s important to read the warnings associated with your medications and to take them seriously. Importantly, if you are pulled over by the police, and they ask about your prescription medication then do not make any statement that may incriminate you. The police may rely on your admission at a later date.

3. Breath Test Rules Apply to the Saliva Test

The rumour that you are not legally obligated to provide a saliva sample for drug testing is simply not true. In fact, failing to do so will – in all likelihood – make things much worse for you. Failing to provide a sample will result in you being fined and potentially imprisoned. You may also be charged with driving under the influence of drugs, despite no sample being present.

Drug driving charges are serious; in that, they may come with other drugs charges attached, such as possession, or worse.

If you are charged with any drug offence, ask to speak with a lawyer as soon as possible and contact criminal lawyers Gold Coast at Hannay Lawyers HERE.

family law disputes

Resolving Family Legal Disputes

By | General News

Family disputes can be emotionally draining and impact on, not only your life but also those of your extended family.

It’s important to realise that entering a formal legal process with your family should be considered a fall-back position rather than a primary option, but it is available to you if all avenues have failed. Here is what you need to know before you begin the process, and as always, we recommend you seek advice from a qualified practitioner who understands family law before taking any action.

Know What You Want

Before stepping into court, you will likely have to go through a dispute resolution process. This will involve formal mediation facilitated by a court-appointed practitioner. Before you begin, you should define, not only what you consider to be a best-case scenario, but also your fall-back position. While this is often difficult to think about, if mediation is successful and you can find a middle ground that everyone considers acceptable, you can move on with your life and perhaps rebuild relationships. Have a clear picture of what you want before starting mediation.

Dispute Resolution Services

As mentioned, before going to court, you will likely be required to undergo a mediation process using dispute resolution services. This will mean meeting with a mediator and other family members and attempting to find a middle ground. It’s important to seek advice before entering into dispute resolution, as you need to know the strength of your argument and, based on that, the strategy you should pursue. Don’t assume that you have a good case which will stand up in court (if you reach that stage) without having a thorough understanding of your legal requirements and obligations.

Dispute resolution and mediation work well if both parties enter into it with a view to finding a middle ground. This is not the time to be overly aggressive, to alienate any family members or to react emotionally if things start to get personal. Keep a cool head, listen carefully to what everyone has to say, and attempt to have a constructive dialogue. The mediator will make sure everyone gets an opportunity to speak, and you may be surprised to find that you and your family are closer to a resolution than you thought. If you cannot reach an agreement, however, you may need to go to court. Before you decide to do so, however, speak to your lawyer and again discuss the merits of your case.

Going to Court

If dispute resolution doesn’t work and you proceed to court, your lawyer will guide you through the process. They will argue the case and your behalf and lay out what they consider to be the best course of action. Your case will form the basis from which a decision will be made, and it’s important to keep in mind that any decision will be legally binding. This matters because the decision will be based on what is dictated by the law, rather than by what is “fair. “The law is designed to be impartial, so what you think you may be entitled to matters less than what is dictated by legal precedent.

For more information or to start a discussion, please click the link to contact us