What to do if you are served a Statutory Notice to Attend an Interview or Produce Documents or Information
A growing number of regulatory agencies in Queensland and Australia have statutory powers to compel a person to produce documents or attend an interview.
First and foremost, failing to comply with these notices may amount to an offence. It is therefore important to obtain legal advice if you are served with this type of notice.
Depending on the enabling legislation, there may be an exemption to having to comply with that notice, for example, if a person has a ‘reasonable excuse’, or for any other reason stated in that legislation.
Before a person decides whether or not they will comply with the notice or rely on a legislative exemption, they should always obtain legal advice immediately upon receiving such a notice.
This article will examine some of the regulatory agencies that have these statutory powers, and how these powers are most commonly exercised.
National Disability Insurance Scheme Commission (“NDIS Commission”)
The National Disability Insurance Scheme Commission (“NDIS Commission”) is a relatively new agency to possess these legislative powers.
Pursuant to section 55A of the National Disability Insurance Scheme (NDIS) Act 2013, the NDIS Commissioner has the power to obtain information from others to ensure the integrity of the NDIS, by issuing a person with a written notice according to section 56 of the Act.
If the Commissioner believes that a person has information that might be relevant to the following matters, the Commissioner can require the person to provide that information:
- Whether an NDIS provider is contravening or has contravened a requirement to be a registered NDIS provider.
- Whether a person applying or registration satisfies the requirements of subsection 73E(1).
- Whether a registered NDIS provider is meeting or has met the conditions of registration.
- Whether an NDIS provider or a person employed or engaged by the NDIS provider, is complying or has complied with the requirements of the NDIS Code of Conduct.
- Whether a person or provider who has been subject to a banning order is providing or has provided support services in contravention of that banning order.
The NDIS Commissioner’s power is important since it allows the NDIS Commission to gain access to information that is essential to determining the facts of a particular matter and contributing to the protection of people with disability experiencing harm or other risks in the course of participating in the NDIS.
The notice must be in writing and must specify:
- The nature of the information or document required to be produced;
- How the person is to give the information or produce the document;
- The period within which the person must produce the document or information;
- If the notice is given by the CEO, the agency to whom the information notice is to be given or the document is to be produced;
- If the notice is given by the Commissioner, the Commission officer to whom the information is to be given or the document is to be produced;
- That the notice is given under section 56 of the Act.
When a notice under s55A and s56 is issued, it is a requirement under the Act to comply with that notice. It is an offence to refuse or fail to comply with the notice, unless a person has a reasonable excuse, such as incriminating an individual or exposing them to a penalty.
Queensland College of Teachers (QCT)
In Queensland, the Queensland College of Teachers (QCT) has the power to require an individual to produce information, attend an investigation to answer questions, or produce a stated thing. These powers are afforded to the QCT pursuant ot section 181 of the the Education (Queensland College of Teachers) Act 2005.
These notices are called “Notice of requirements” and may be:
- A notice to give stated information under section 181(1)(a);
- A notice to attend an interview before an investigator to answer questions under section 181(1)(b);
- A notice to produce a stated thing to the investigator under section 181(1)(c).
A person who fails to comply with a notice under section 181 commits an offence punishable by up to 50 penalty units under section 182 of the Act, unless they have a reasonable excuse, which includes if doing those stated things might tend to incriminate the individual.
- It is an offence to produce a document or information which is knowingly false or misleading; and
- if the person receiving the notice is a registered teacher and fails to comply with the notice, that failure in itself may be considered a ground for disciplinary action pursuant to section 92(1)(i) of the Act.
Australian Health Practitioner Regulation Agency (AHPRA) Investigators
As part of an investigation, AHPRA investigators have the power to compel you to provide information. This can include documents, or attending an interview to provide the information verbally.
Investigators appointed under the National Law have various statutory powers to obtain evidence and information relevant to an investigation, including powers requiring a person to provide information, answer questions or produce documents, within a stated reasonable time and in a stated reasonable way.
A person who, without reasonable excuse, fails to comply with an investigator’s request may be liable to a penalty. As of the date of this article, the penalty is $5,000 for individuals and $10,000 for a body corporate.
Furthermore, if the person who fails to comply with the notice is a practitioner, or if the practitioner provides false or misleading information in the course of an investigation, that practitioner may be also subject to disciplinary action.
Anyone who receives a statutory notice to attend an interview or produce documents or information should obtain legal advice immediately to assess their options.
A person should never do any of the following things before first obtaining legal advice:
- failing to comply with the notice;
- attending the interview or producing the documents, without first obtaining advice on whether those documents might incriminate you;
- attempt to exercise a statutory exemption to these notices.
Potts Lawyers is experienced at advising registered professionals and third parties who receive these notices and can provide timely advice on your options.
As the legislative schemes that govern these notices vary, and a person’s circumstances will undoubtedly differ, there is no set formula for responding to these notices, and it is therefore important to obtain legal advice that is tailored to your needs.
Potts Lawyers are one of the largest and most experienced law firms in QLD.