On 1 October 2012 the Search and Surveillance Act came into force.  As a consequence, if criminal sanctions for cartel conduct are introduced next year (as currently expected), it is likely that the Commerce Commission's powers will be significantly expanded to include intrusive surveillance and interception powers.  This Alert explores the Commission's existing powers, the immediate changes arising from the new Act, and how to get your business ready. 

Introduction

The Commerce Commission ("Commission") already has extensive powers to investigate suspected breaches of the Commerce Act 1986 (the "Commerce Act"), including:

  • Section 98 Notices: These enable the Commission to require any person to produce specified documents or information or to give evidence, including under oath. 
  • Section 98A powers to search:  The Commission can apply to the District Court for a warrant to search premises and seize documents.   

The section 98A powers are augmented, but not materially, by the Search and Surveillance Act 2012 ("Search and Surveillance Act") which came into force on 1 October 2012.1  However, the passage of that Act also means that if the Commerce (Cartels and Other Matters) Amendment Bill ("Cartels Bill") is passed in its current form the Commission will likely obtain intrusive surveillance and interception powers by virtue of the maximum penalty for cartel conduct being increased to a seven year jail term.

Surveillance and interception powers

The Search and Surveillance Act provides for intrusive surveillance and interception powers such as:2

  • interception of private communications;
  • use of tracking devices; and
  • observation and recording of private activities in private premises.

Cartel criminalisation will provide the Commission with these powers because the surveillance and interception regime in the Search and Surveillance Act is available to enforcement agencies investigating offences punishable by imprisonment of seven years or more.3  That restriction was included in the Search and Surveillance Act following significant public opposition to the original proposal that such powers be afforded to all enforcement agencies regardless of the offences being investigated. 

The Commission itself has identified in its submission to the Commerce Select Committee on the Cartels Bill that the ability to have recourse to these powers is potentially an advantage of criminalising cartel conduct.4  The ACCC also already has the power to obtain interception warrants in cartel investigations.

Immediate effects of the Search and Surveillance Act

Aside from the likely introduction of surveillance and interception powers, the other immediate effects of the new Search and Surveillance Act regime for Commission investigations are that it:

  • provides the Commission with a new general power to secure a 'scene' before it obtains its warrant if an officer has reasonable grounds to believe that evidential material may be destroyed.5
  • sets out the process relating to privilege:
    • the Search and Surveillance Act sets out that warrants should include a statement explaining the availability of privilege and how privilege may be claimed.6
    • the Search and Surveillance Act confirms that the search powers of the Commission are limited by privilege,7 and if privilege is contested the Commission must not search the contested item but may secure the contested item and deliver it to a court for determination.8
  • sets out the process relating to seizure: the Commission now has the power to seize items of an 'uncertain status' (ie, if it is not certain whether an item found may be lawfully seized) and those in 'plain view' (where an officer believes a warrant could be obtained to seize an item and finds that item while lawfully in a place).9
  • provides the Commission with a right to require persons (including employees of a company being searched) to assist in computer searches, for example, by handing over passwords.10
  • allows for a warrant to access data remotely,11 so servers located outside search premises and data stored in cloud format can be clearly caught.
  • sets out the duties of officers executing a search warrant.  Officers are required to give notice of intention to search before initial entry, provide a copy of the search warrant and identify themselves, and provide a written notice specifying what was seized no later than seven days after the search.12   
  • raises the standard for consent searches by introducing a new requirement whereby if the Commission requires consent to search without a warrant it will be required to inform the relevant people that they have a right to decline consent.13
  • introduces a new "production orders" regime to run in parallel to the Commission's section 98 powers, which although substantially similar to the Commission's existing powers of production will involve a more onerous process for the Commission.14
  • increases the thresholds for invalidity of a warrant:  now a warrant will only be unlawful if it is issued on insufficient grounds,15 or is misleading as to the scope or purpose of the warrant.

Recommendations

These changes will have effects for any businesses that are subject to investigations by the Commission.  We recommend businesses ensure that their search warrant guidelines are sufficiently current to reflect the new law.  If your business does not have search warrant guidelines, Russell McVeagh has a generic search warrant checklist available upon request as a high level guide, although it does not purport to deal with all the matters that would be relevant to consider during a search.  Otherwise, businesses can contact us to assist in producing guidelines tailored to your business's structure and processes.

Whether the Commission is extended more invasive powers under the surveillance and interception regime will depend in part on any amendments that are made to the Cartels Bill during its passage through Parliament.  If enacted in its current form, the Commission is likely to obtain, for investigations of cartel conduct, intrusive powers largely reserved to the Police for serious crimes.