In our second article on the Australian Competition & Consumer Commission’s (ACCC) coercive information-gathering powers, we examine section 155(1)(c) notices and suggest some practical “do’s and don’ts” for examinees. Read our first article in this series on tips for handling section 155(1)(a) and (b) notices that require the production of information and documents here.
Section 155 notices: Oral examinations
Section 155(1)(c) of the Competition and Consumer Act (CCA) allows the ACCC to conduct compulsory examinations of any person who it reasonably believes is capable of providing evidence in relation to a suspected contravention of the CCA.
A person who receives a section 155(1)(c) notice is required to attend a specified location, usually an ACCC office, on a particular day to answer questions on oath or affirmation. Section 155(1)(c) examinations are held in private and are usually conducted by barristers. Examinees must keep the matters discussed in the examination confidential.
As outlined in the graph below, there has been an upward trend in the number of section 155(1)(c) notices issued by the ACCC since 2009-10. In light of this increase, we offer in this update some key “do’s and don’ts” for persons who are required to attend a section 155(1)(c) examination.
Number of section 155(1)(c) notices issued by the ACCC
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Practical tips for dealing with mandatory oral examinations
Do not ignore the section 155 notice. Section 155 notices are mandatory. Failure to comply with a s155 notice, or knowingly providing information that is false or misleading, is a criminal offence. Individuals face fines of up to $3,600 or up to 12 months’ imprisonment.
Do have a legal adviser accompany you to the examination. An examinee is permitted to have a lawyer present at the examination. The lawyer may object to irrelevant questions (being those that do not relate to the matter specified in the section 155(1)(c) notice), assist the examinee to protect information subject to legal professional privilege, request short adjournments for the examinee, and re-examine the examinee at the end of the examination to clarify answers provided earlier in the examination.
Do extensively prepare for the examination. This may include preparing a detailed chronology of events relevant to the matter set out in the section 155 notice (including the examinee’s role in those events) and reviewing relevant documents produced to the ACCC by the company (either voluntarily or subject to a section 155(1)(b) notice) which the examinee has written or had access to.
Do take your time to read documents and consider questions put to you. Examinees are entitled to review documents relevant to questions put to them and to carefully consider their answers before providing them.
Do not answer questions which you do not understand or know the answer to. If an examinee does not understand a question, they should ask the examiner for more detail or clarification. If a question is still confusing even after further detail or clarification is sought, the examinee should ensure their answer is qualified by what they understand the question to mean. If the examinee does not have knowledge of matters they are asked about, they should make this clear in their response. Examinees should not guess answers or offer opinions or conclusions. They should also limit their answers to the information required to answer the specific question asked.
Do ask for a copy of the transcript from the section 155(1)(c) examination. The examinee should check the transcript of the examination taken by the ACCC against their own recollection, check for transcription errors, and consider whether there is any supplementary information or corrections that should be put to the ACCC.
An employee’s response to a section 155 notice can be critical in determining the investigation’s eventual outcome. It is best to engage internal or external lawyers as soon as possible in an ACCC investigation and, certainly, upon receiving a section 155 notice.