Certain persons to assist in prosecutions
207 Certain persons to assist in prosecutions
If a prosecution in relation to an offence against this Act has been brought, or ASIC is of the opinion that a prosecution in relation to an offence against this Act ought to be brought, against a person (the defendant), ASIC may:
if the defendant is a natural person—require any person who is or was a partner, employee or agent of the defendant; or
if the defendant is a body corporate—require any person who is or was an officer (within the meaning of the Corporations Act 2001), employee or agent of the defendant;
to assist in the prosecution, and the person who is so required must give all assistance in connection with the prosecution that that person is reasonably able to give.
A person commits an offence if:
the person is subject to a requirement under subsection (1); and
the person engages in conduct; and
the conduct contravenes the requirement.
Criminal penalty: 20 penalty units.
Subsection (2) is an offence of strict liability.
For strict liability, see section 6.1 of the Criminal Code.
For the purposes of subsection (2), it is a defence if the person:
is the defendant; or
is or has been the defendant’s lawyer.
A defendant bears an evidential burden in relation to the matter in subsection (4) (see subsection 13.3(3) of the Criminal Code).
If a person (other than the defendant or a person who is, or has been, the defendant’s lawyer) does not comply with a requirement under subsection (1), the court may, on the application of ASIC, order the person to comply with the requirement within such time, and in such manner, as the court orders.
If ASIC makes a requirement under subsection (1) in writing, the requirement is not a legislative instrument.
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