If a regulator issues a warrant it is a serious matter. Typically, a warrant will only be sought after approval at senior levels within a regulator and can only be issued by a Magistrate or Justice of the Peace after they have considered evidence relating to the commission of an alleged offence.
A regulator acting upon a warrant will do so without notice and is a very clear signal that the regulator is concerned about a serious matter.
A notice that is part of (or accompanies) the warrant will set out the documents and equipment that are the subject of the search and will identify the offence that the regulator believes may have occurred. The warrant may allow for interviews with company officers and staff.
Those that attend your premises with a warrant will have a depth of experience in doing the job. You can expect them to be efficient, well briefed and accompanied by their own IT. Police may be in attendance. They will invade computers, sift through documents – both physical and digital, interview staff and put material into containers for removal.
In general terms, a corporation needs to do its best to comply with the warrant, however, there are legal grounds to challenge what they do. This is why your first step should be to call an external lawyer who has experience in the area.
If you find yourself presented with a warrant, follow our step-by-step guide of how to respond.
If you are managing an issue with an Australian regulator in any capacity, it may be prudent to keep this on hand and make sure the key people in your organisation are familiar with process, well before the situation arises. Download our printable pdf.
The following guidelines are based on the General Guidelines between the Australian Federal Police and the Law Council of Australia as to the execution of search warrants where a claim of legal professional privilege is made.
It is a protocol which may be agreed in dealing with the execution of a search warrant by the Australian Federal Police or the ACCC, and may form the basis for an agreed process in response to other warrants.
In respect of all documents identified as within the warrant, the officer should give counsel the opportunity to claim privilege in respect of those documents. If counsel asserts a claim for privilege, counsel should indicate the grounds upon which the claim is made.
All the documents over which privilege is claimed should be placed in a container by counsel in the presence of the officer. Counsel should be allowed to take copies of all of the documents before the container is sealed.
The officer in cooperation with counsel should prepare a list of all of the documents which have been placed in the container.
The container and the list should be signed by both counsel and the officer and endorsed to the effect that the warrant has not been executed in relation to the documents in the container, but that the documents will be given to the court or an agreed third party pending resolution of the disputed privilege claim.
The container and a copy of the signed list should be handed over to the agreed third party.
The proceedings to resolve the disputed privilege claim should be instituted within a defined time period, and, on institution, the container should be delivered by the third party to the Registrar of the court pending the court’s order.
It is important to get legal advice if you are facing any form of compulsory processes or examination by a regulator in Australia. It also helps to know your legal rights and the principles which might apply to the regulator, including integrity, professionalism, confidentiality, timeliness, proportionality and fairness. See our complete Guide to dealing with Regulators in Australia for further information on how to best respond to these processes, as well as engagement with regulators on a voluntary basis.
This article is general in nature. Your dealings with a regulator are of fundamental importance to your business and you should seek expert legal advice.
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