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Amendment of Chapter 2 of Part IIIC of Act of 1942
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43. Chapter 2 of Part IIIC of the Act of 1942 is amended by the insertion of the following sections before section 33AO:
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“Interpretation (Chapter 2)
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33ANI. In this Chapter—
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‘investigation’ means an investigation referred to in section 33ANJ(1);
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‘responsible authorised officer’ means the authorised officer responsible for an investigation.
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Investigation of suspected prescribed contravention
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33ANJ. (1) As soon as practicable after a decision is made by the Bank to investigate—
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(a) whether a person is committing or has committed one or more prescribed contraventions, or
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(b) whether a person is participating or has participated, while performing a relevant controlled function, in the commission by a regulated financial service provider of one or more prescribed contraventions,
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the responsible authorised officer shall give the person notice in writing of the investigation.
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(2) The responsible authorised officer shall give the person to whom an investigation relates an amended notice in writing of the investigation as soon as practicable after any of the following events:
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(a) there is a change in the investigation of the commission of or participation in a prescribed contravention such that a statement included under subsection (3)(a) is no longer accurate;
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(b) the investigation is extended to include investigation of the commission of or participation in another prescribed contravention;
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(c) investigation of the commission of or participation in a prescribed contravention is discontinued, while continuing in relation to another prescribed contravention.
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(3) A notice under subsection (1) or (2) shall include—
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(a) a statement identifying each prescribed contravention, and the conduct of the person concerned, to which the investigation for the time being relates,
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(b) a copy of such material relating to the matters referred to in paragraph (a) as the responsible authorised officer considers appropriate, and
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(c) a statement that a response to the contents of the notice will be taken into account if made by the person in writing within the period stated in the notice or such longer period as the responsible authorised officer may allow.
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(4) The responsible authorised officer shall take such steps as he or she considers reasonable to keep the person to whom an investigation relates informed as to the progress of the investigation.
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(5) If an investigation is discontinued in respect of all prescribed contraventions, the responsible authorised officer shall as soon as practicable give the person to whom the investigation relates notice in writing which—
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(a) states that the investigation has been discontinued, and
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(b) gives one or more of the following reasons for the discontinuance:
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(i) that the Bank no longer has reasonable grounds to suspect the person’s commission of or participation in a prescribed contravention, so far as included in the investigation immediately before the discontinuance;
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(ii) that the matters included in the investigation immediately before the discontinuance have been resolved;
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(iii) that the investigation has been discontinued for reasons of resources;
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(iv) that the investigation has been discontinued for policy reasons;
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(v) that the investigation has been discontinued for reasons of any other description stated in the notice.
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(6) If investigation of the commission of or participation in a prescribed contravention is discontinued while continuing in relation to another prescribed contravention, the responsible authorised officer and the Bank are not required to give a reason for the discontinuance.
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Investigation report
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33ANK. (1) When an investigation is completed, the responsible authorised officer shall, after considering—
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(a) the notice given under section 33ANJ(1) and any notice given under section 33ANJ(2),
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(b) any relevant information or evidence gathered or received in the course of the investigation, and
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(c) any response made by the person to whom the investigation relates in accordance with a statement referred to in paragraph (c) of section 33ANJ(3), and any other relevant submission or statement made by the person in the course of the investigation,
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as soon as practicable prepare a draft report of the investigation.
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(2) The responsible authorised officer shall, as soon as practicable after preparing the draft report, give the person to whom the investigation relates—
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(a) a copy of the draft report,
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(b) a copy of this section, and
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(c) a notice in writing stating that the person may make submissions in writing to the responsible authorised officer on the draft report within the period stated in the notice, which shall be—
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(i) 7 days from the date on which the notice is served, or
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(ii) such longer period as the authorised officer considers necessary to give the person an opportunity to respond.
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(3) The responsible authorised officer shall, as soon as practicable after the end of the period referred to in subsection (2)(c), and having considered any submissions made in accordance with that paragraph, make any revisions to the draft report that in the opinion of the authorised officer are warranted, and finalise the report.
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(4) The responsible authorised officer shall not make any recommendation, or express any opinion, in a draft report under subsection (1) or in a final report under subsection (3), as to—
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(a) whether any sanction (or, if so, what sanction) should be imposed under section 33AQ(3) if the Bank makes a finding that the person is committing or has committed a prescribed contravention, or
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(b) whether any sanction (or, if so, what sanction) should be imposed under section 33AQ(5) if the Bank makes a finding that the person is participating or has participated, while performing a relevant controlled function, in the commission of a prescribed contravention.
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(5) The responsible authorised officer shall, as soon as practicable after the report has been finalised under subsection (3), provide to the Bank and to the person to whom the investigation relates—
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(a) a copy of the final report, and
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(b) a copy of any submissions made in accordance with subsection (2)(c).
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(6) A draft report and final report under this section shall include any material that in the opinion of the responsible authorised officer is relevant to the consideration of the report by the Bank under section 33AO(1) or (2) or 33AR(2) or (4).
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(7) A person who receives a copy of a final report or any submissions under subsection (5) shall not, subject to section 33AK, disclose the existence of or the content of the report or the submissions unless authorised to do so by the Bank in writing or required to do so by law.
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(8) Nothing in subsection (7) prevents a person from disclosing the existence of or the content of a report or submissions to his or her legal representative.
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(9) A person who without reasonable excuse contravenes subsection (7) commits an offence and is liable on summary conviction to a class A fine or imprisonment for a term not exceeding 6 months or both.
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Confidential information provided for purposes of investigation etc. not to be disclosed
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33ANL. (1) Where confidential information is provided to a person for the purposes of an investigation, or under or for the purposes of subsections (1) to (3) of section 33ANK, that person shall not, subject to section 33AK, disclose that information unless authorised to do so by the Bank in writing or required to do so by law.
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(2) Nothing in subsection (1) prevents a person from disclosing information to his or her legal representative.
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(3) In this section, ‘confidential information’ includes information given to a person for the purposes of an investigation, or under or for the purposes of subsections (1) to (3) of section 33ANK, where—
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(a) the person has been notified by the responsible authorised officer that the information is confidential, or
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(b) the information is of a class or description in relation to which the person has been notified by the responsible authorised officer that information of that class or description is confidential.”.
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