In June, the Australian Competition and Consumer Commission (ACCC) published its guideline on section 155 notices entitled "ACCC guidelines – Use of section 155 powers" (Guideline). The Guideline provides useful information on section 155 of the Competition and Consumer Act 2010 (Cth) (CCA), that allows the ACCC to obtain information, documents and evidence from businesses or persons during its investigations into potential contraventions of the CCA and/or the Australian Consumer Law (ACL). If you receive the notice, you should understand how to deal with it. Failure to comply with it could mean that you or your company face serious penalties.

What is a section 155 notice?

A section 155 notice is statutory information gathering tool that the ACCC may issue in order to obtain information, documents and evidence that could be relevant for the purposes of their investigation into, amongst other things, possible or actual contraventions of the CCA and/or the ACL.

When will the ACCC issue a section 155 notice?

Although the ACCC will usually provide you with the opportunity to voluntarily produce information, documents or evidence prior to issuing a section 155 notice, the ACCC may, in certain circumstances, issue a section 155 notice without any notice. The ACCC's Guideline provides some examples in which the ACCC may issue one, including:

  1. the ACCC does not have confidence that voluntary production would be fully completed or completed in a timely fashion;
  2. the ACCC has reason to believe that information voluntarily provided by a party is not; and/or
  3. a party refuses to cooperate with the ACCC.

The Guideline also suggests that prior to issuing a section 155 notice, the ACCC will consider whether:

  1. to preserve the information as it may be at risk of being destroyed;
  2. it wants to obtain the information for evidentiary purposes such as obtaining oral evidence from the recipient about the information;
  3. the notice is the necessary tool as opposed to other ACCC powers; and
  4. the time and/or cost of compliance with the section 155 notice is disproportionate to its purpose.

Importantly, section 155(1) makes clear that the ACCC, Chairperson or a Deputy Chairperson must have "reason to believe that a person [or company] is capable of furnishing information, producing documents or giving evidence" that concerns its investigation on a possible or actual contravention of, for example, the CCA.

Who can be a recipient of the section 155 notice?

Anyone.

You can be a party that is the subject of an ACCC investigation or a third party (such as a trade competitor) and be issued with the notice – as long as you may have relevant information, documents or evidence.

How do you deal with the notice?

Be compliant with it. Spend the time and resources to ensure you completely discharge your obligations. This includes obtaining urgent legal advice on compliance with it. Failure to do so may result in serious penalties (see below).

What happens if you fail or refuse to comply with the notice?

The penalties for refusing or failing to comply with the section 155 notice, include:

What happens if you reasonably believe that you had complied with the section 155 notice but can't locate the document(s)?

Section 155(5B) of the CCA provides you with a "safety net" known as the "reasonable search" defence.

If you, after a reasonable search, cannot find any document or information that was contemplated by the section 155 notice, you may be granted the protection of section 155(5B).

In order to succeed with the "reasonable search" defence, you must:

  • have received a section 155 notice for the production of documents pursuant to subsections 155(1)(b) and (c);
  • prove that you are not aware of the documents subsequent to a "reasonable search"; and
  • provide a written response to the section 155 notice particularising the scope and limitations of your search.

Subsection (6) sets out some factors to be considered when determining whether a search is reasonable including, the nature or complexity of the requirements under the section 155 notice, the number of documents involved, and the nature and cost of the search relative to the resources given to you.

But it doesn't stop there.

You will also need to prove, on the balance of probabilities, that you undertook a reasonable search and was still not aware as to the existence of the requested documents. The defence is not available for those who are aware that the document exists but failed to locate it. Ultimately, whether you are entitled to the "reasonable defence" is a matter for the Court.

Key lessons

If you or your company is hit with a s 155 notice – comply with it. It is imperative that you obtain urgent legal advice to ensure that you or your company properly discharge it obligations and minimise any exposure to potential claims going forward – including those arising from a failure to discharge your obligations pursuant to a s 155 notice.