ASIC has a statutory obligation to give people a hearing in certain circumstances.
Part 4 of ASIC's Hearings Practice Manual (RG 8) summarises when this statutory obligation may arise. Information about how you can obtain a copy of the Manual is set out at the end of this Information Sheet.
This information sheet briefly tells you about how we conduct these administrative hearings.
Telling you about a hearing
If you have a right to have a hearing we will give you a “Notice of Hearing” which will tell you, among other things:
under what law and the particular provision/s we are conducting the hearing,
the purpose of the hearing,
the issues that are of concern to us (In the case of s206F of the Corporations Act the issues of concern will be identified in a notice given to the person under s206F(1)(b)(i) requiring them to demonstrate why they should not be disqualified. A Notice of Hearing will be sent after the person has requested to be heard on why they should not be disqualified from managing corporations.),
who you can contact if you have questions about the hearing,
when the hearing will be held and how long we estimate it will take,
where the hearing will be held, and
what happens if you do not respond; namely that we will make a decision based on the information we already have.
You can ask for copies of material which we will use when making our decision. If there are no confidentiality problems, you will usually be given access to copies of this material.
What you should do
If you get a Notice of Hearing you should carefully consider:
the issues of concern to us,
any material we give you,
whether you want to appear in person at the hearing or send us a written submission,
what material you want to present to us,
whether you want to be represented at the hearing, and
the consequences if you do not respond to the notice.
You normally have 28 days from the date of receiving the Notice of Hearing to appear at the hearing in person or to send us a written submission. If the date is not convenient or the time estimated is inaccurate you should contact us as soon as possible.
How hearings are conducted
Our administrative hearings are conducted informally and as promptly as possible. You may give us any relevant material, including giving oral evidence, making an oral submission or providing written statements, documents or submissions.
Do not think of our hearings as being a court or other judicial process. The rules of evidence and usual court rules of procedure and practice do not apply in our hearings. A hearing should not be approached on the basis of a contest between you and us.
You can be represented at a hearing
You can choose whether you want a legal representative at the hearing. Your legal representative can assist you to prepare your submissions and to present any evidence which you want to give at the hearing.
We may allow you to be represented by an employee, a friend or a non-legal adviser. Whether they will be allowed to attend will depend on whether their presence will help the hearing, for example, by assisting you to present your evidence and to make submissions.
If you want to be represented by someone other than a lawyer, you should contact us as soon as possible after receiving the Notice of Hearing.
The hearing will be conducted by one of our staff members who has the power to hold the hearing (the delegate). If you decide to appear in person at the hearing, the delegate:
will listen to your evidence and submissions;
may ask you, and any witness called, questions so that the evidence is clear; and
having heard this evidence, will make a decision based on all the information.
The delegate will make their decision based on your material or submissions and any other relevant material.
If you do not appear in person or do not send any written submissions, they will make their decision on whatever relevant information they have.
Public or private hearings
Sometimes we must hold the hearing in private. On other occasions we can choose whether to hold it in public or private. The Notice of Hearing will tell you whether the delegate proposes to hold the hearing in public or private.
Witnesses and documents
Usually, it will not be necessary for witnesses to appear in person at a hearing as a written statement from them or a copy of relevant documents will be sufficient. Before we agree to summon a witness we will need to be satisfied, among other things, that:
the person can give relevant evidence and/or produce relevant documents; and
it is necessary to summon them.
The person who asks for the summons must pay the fees, allowances and expenses of that witness.
We are responsible for our costs of the hearing. However, you must pay your own costs, those of your legal representative or other representative, if any, and of any witness you call.
Reasons for our decision
The delegate will usually give you the reasons for their decision when they tell you what their final decision is. If you do not get reasons at the time you are notified of the delegate’s decision you can ask the delegate to give you the reasons for the decision. Your request must be made in writing within 28 days of our telling you the final outcome.
There is a full explanation of how we conduct our hearings in our Hearings Practice Manual (RG 8) available from our website at www.asic.gov.au/hearingsmanual.
The general legislative provisions dealing with our administrative hearings are set out in Division 6 of Part 3 of the Australian Securities and Investments Commission Act 2001.
For further information contact ASIC Client Contact Centre Infoline on 1300 300 630
This is Information Sheet 1 (INFO 1). Information sheets provide concise guidance on a specific process or compliance issue or an overview of detailed guidance.