On 7 September 2016, the Australian Competition and Consumer Commission (ACCC) issued updated guidelines relating to its use of investigative powers under section 155 of the Competition and Consumer Act 2010 (Cth) (CCA): ACCC Guidelines – Use of section 155 powers (New Guidelines).
The New Guidelines follow a recommendation from the Government’s Competition Policy Review that they be reviewed ‘having regard to the increasing burden imposed by notices in the digital age’.1
Section 155 of the CCA deals with the ACCC’s power to compulsorily obtain information, documents and evidence relating to facts that may constitute a contravention of the CCA.
The New Guidelines replace the ACCC’s March 2008 publication which outlined the ACCC investigative powers under section 155 under the Trade Practices Act 1974 (Cth) (2008 Guidelines).
What are the practical implications of the New Guidelines?
- The ACCC will take a more consultative approach with a company when seeking production of documents that may cause a considerable cost and time burden.
- Companies may have more ability to help shape the scope of an ACCC request for documents where the initial request is broad and will result in considerable time and cost.
- Companies may no longer be required to take onerous cost and time measures to retrieve documents – ironically, old archiving systems may be more beneficial to a company faced with a section 155 notice given the time and expense of retrieval.
- Despite the New Guidelines, it is still a criminal offence not to comply with a section 155 notice.
- Companies should, from a very early stage of the investigation process, identify the location and ability to retrieve all documents sought and communicate these issues with the ACCC immediately.
Overview of New Guidelines
The New Guidelines seek to provide guidance to the business community, their advisers and the public about the procedures and approach taken by the ACCC in exercising their section 155 investigative powers.
In summary, the New Guidelines outline:
- the circumstances in which a section 155 notice may be issued and considerations taken into account by the ACCC;
- limits on the ACCC’s powers under section 155;
- formal requirements for a valid notice and effective service;
- how to vary a notice;
- how to comply with a notice;
- how oral examinations are conducted; and
- how the ACCC may use information obtained under section 155.
What is the key difference between the 2008 Guide and the New Guidelines?
The principal difference between the 2008 Guide and the New Guidelines is that the latter now acknowledges the potential burden on companies in complying with a section 155 notice and sets out in significantly more detail the ACCC’s approach in determining whether a company has a ‘reasonable time to comply’ with that notice.
The 2008 Guide was relatively silent on this issue.
The New Guidelines accordingly state that the assessment of whether a company has a ‘reasonable time to comply’ with a section 155 notice is made by balancing the value of the information to the ACCC (and the urgency of the relevant investigation) with the time and cost burden that the recipient is likely to experience when complying with the notice.
In outlining the ACCC’s approach, the New Guidelines emphasise that steps will be taken by the ACCC to minimise the compliance and cost burden. This can be done by limiting the scope of and targeting the section 155 notice appropriately. The ACCC takes into account various matters relevant to the recipient including the extent to which documents are likely to be stored electronically, the nature of the documents sought and the organisational structure of the recipient. The ACCC will also consider the way in which the proposed recipient may conduct its document management system, including its digital environment, and in some circumstances may contact proposed recipients prior to issuing a notice in order to obtain a better understanding of this and other relevant matters.
Following service of a notice, recipients are encouraged to promptly engage with the ACCC regarding its scope and terms allowing any issues regarding the possible compliance burden to be raised and dealt with.
What are the other important changes?
The following matters are also addressed in the New Guidelines but were not in the 2008 Guide:
Compulsory vs voluntary requests
further details of the circumstances in which the ACCC may not consider it appropriate to rely on the voluntary production of information and therefore opt for compulsory production under section 155;
- the ACCC may engage with proposed examinees prior to issuing a section 155 notice which requires that person to appear and give evidence;
- whilst examinees are entitled to have a legal adviser present at examinations, it will not usually be appropriate for in-house lawyers and other representatives of the examinee’s employer to be in attendance due to the likelihood of there being a conflict of interest;
- a transcript of an examination may, in some circumstances, not be made available until the conclusion of the whole investigation; and
Use of evidence
where the ACCC has obtained material in the course of one matter it can use that material, where relevant, in another matter.
Guidelines for Individuals and Small Businesses
In addition to the release of the New Guidelines, the ACCC has published a basic guide to section 155 notices for individuals and small businesses (Basic Guide). The Basic Guide provides a more user-friendly guide to the steps an individual or small business should take upon receipt of a section 155 notice.
The release of this Basic Guide is consistent with the ACCC’s recent focus on protecting small businesses.
Proposed legislative changes to section 155
Last week, the Government released proposed draft legislation amending the CCA.
One of the proposals was the inclusion of a new “reasonable search” defence in relation to a failure or non-compliance to produce documents required for an ACCC investigation. Whether a party has satisfied the defence will depend upon the nature and complexity of the matter, the number of documents involved, the ease and cost of retrieving documents and the significance of the documents. This amendment reflects the New Guidelines in that the defence seeks to provide some relief to companies that have many thousands of documents stored digitally that may be difficult to retrieve.
In addition to this amendment, the maximum penalty for non-compliance with a section 155 investigation will be materially increased from $18,000 and 1 year jail to $90,000 and 2 years in jail (current penalty rates).
The ACCC has indicated it will update the New Guidelines if and when the new proposal becomes law.