This information sheet (INFO 1) briefly explains how we conduct administrative hearings. It covers the following topics:
- Why we conduct hearings
- Telling you about a hearing
- What you should do if you receive a notice of hearing
- How hearings are conducted
- Being represented at a hearing
- Our role
- Public or private hearings
- Witnesses and documents
- Reasons for our decision
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.
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 provision/s we are conducting the hearing
- the purpose of the hearing
the issues that are of concern to us
Note: In the case of s206F of the Corporations Act, the issues 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 from managing a corporation. Arrangements for a hearing will be made if the person asks to be heard on why they should not be disqualified.
- 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
- 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 the documents that we rely on in relation to the issues that are of concern to us.
If you receive 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
- 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 you consider that the time estimated is not sufficient you should contact us as soon as possible.
Our administrative hearings are conducted informally and as promptly as possible. You may give us any relevant material, including giving evidence or making submissions verbally, 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 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 that 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
- 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, the delegate will make their decision on whatever relevant information they have.
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.
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
- 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.
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 more information call our Customer Contact Centre on 1300 300 630 or contact us online.
Please note that this information sheet is a summary giving you basic information about a particular topic. It does not cover the whole of the relevant law regarding that topic, and it is not a substitute for professional advice.
You should also note that because this information sheet avoids legal language wherever possible, it might include some generalisations about the application of the law. Some provisions of the law referred to have exceptions or important qualifications. In most cases your particular circumstances must be taken into account when determining how the law applies to you.
This is Information Sheet 1 (INFO 1), issued in May 2021.