Published
July 22, 2026The most consequential day in many white-collar prosecutions is not the trial. It is an examination conducted years earlier, in a private room, under compulsion, before any charge existed — when the person examined still believed they were assisting with someone else’s problem.
ASIC, the ACC, IBAC, the ATO and other agencies hold powers to compel a person to attend, answer questions, and produce documents. These powers abrogate the privilege against self-incrimination: the examinee must answer. The protections that replace the privilege are partial, technical, and — critically — must generally be invoked in the prescribed manner to operate at all. Answers given under compulsion may be protected from direct use against the examinee in later criminal proceedings, but the investigation they enable is not undone, and documents, once produced, are produced.
Three errors recur. The first is attending without advice, on the reasoning that a person with nothing to hide needs none. The examination is transcribed, the transcript is permanent, and its account will be compared — years later, by people with the documents in front of them — against records the examinee has never seen. Imprecision reads as dishonesty in hindsight.
The second is treating legal professional privilege casually. Privilege survives the compulsory powers, but it must be claimed, properly and specifically, before production. A privileged document handed over in a warehouse-clearing exercise is rarely recovered.
The third is assuming an alignment of interests with one’s employer. The company’s lawyers act for the company. The point at which an officer or employee needs separate representation arrives earlier than either party tends to recognise, and it has usually passed by the time it is obvious.
Secrecy obligations frequently restrict what an examinee may disclose about the examination itself, including to colleagues — a constraint with real personal weight, and one on which specific advice is required.
The firm advises and appears at compulsory examinations, and its engagements in this area are conducted in strict confidence from the first contact. The right moment to seek advice is upon receipt of the notice — before any response, however preliminary, is given.
