Compulsory Examinations

When the Right to Silence Is Removed

The right to silence is a fundamental protection in our legal system. However, a number of statutory bodies in Australia have been granted coercive powers that abrogate this right, compelling individuals to attend examinations and answer questions under oath. Failure to comply can result in contempt proceedings and imprisonment.

Compulsory examinations are conducted in secret and the proceedings are fraught with legal complexity. What you say during a compulsory examination can have profound consequences for any related criminal proceedings, civil matters, or regulatory investigations. It is essential that you are represented by a lawyer with specialist experience in this area.

Where Compulsory Examinations Arise

We regularly appear for clients summoned to give evidence before the following bodies:

• NSW Crime Commission

  The Crime Commission has broad coercive powers to compel witnesses to attend examinations, produce documents and answer questions in relation to serious criminal activity. These hearings are conducted in private and non-compliance is punishable by imprisonment.

• Australian Federal Police (AFP) and Commonwealth Proceeds of Crime Examinations

  Compulsory examinations may arise in the context of Commonwealth investigations, including proceeds of crime matters and serious fraud investigations, where examination orders are made under the Proceeds of Crime Act 2002 (Cth). Related administrative review proceedings are now heard by the Administrative Review Tribunal (ART).

• Australian Criminal Intelligence Commission (ACIC)

  The ACIC conducts special investigations into organised crime and has the power to issue summonses compelling individuals to attend examinations and produce documents. These powers are among the most extensive in Australian law.

• Independent Commission Against Corruption (ICAC)

  ICAC investigates allegations of serious corruption involving or affecting the NSW public sector. Witnesses summoned before ICAC are compelled to answer questions and produce documents, with limited protections available.

Your Rights

Although the right to silence is abrogated in compulsory examination proceedings, you retain important rights. You are entitled to legal representation, and in most cases your answers cannot be used directly against you in subsequent criminal proceedings, subject to certain exceptions. However, the information obtained during the examination can be used to advance an investigation, identify further witnesses, and gather additional evidence.

Understanding the scope and limits of these protections is critical. Our lawyers will advise you on your rights, prepare you thoroughly for the examination, and attend with you to ensure that the examining body does not exceed its powers.

How We Can Help

• Advising on the scope and effect of the summons or notice to attend
• Preparing you thoroughly for the examination, including the types of questions to expect
• Attending the examination with you and raising objections where appropriate
• Protecting the use immunity and derivative use immunity available under the legislation
• Coordinating with your defence in any related criminal proceedings
• Challenging the validity of the summons or examination process where grounds exist
• Representing you in contempt proceedings if they arise