Section 155 Of The Trade Practices Act

Section 155 of the Trade Practices Act

March 2008 A guide to the Australian Competition and Consumer Commission’s power to obtain information, documents and evidence under s. 155 of the Trade Practices Act 1974

ISBN 978 921393 51 8

This work is copyright. Apart from any use permitted by the Copyright Act 1968, no part may be reproduced without permission of the Australian Competition and Consumer Commission. Requests and inquiries concerning reproduction and rights should be addressed to the Director Publishing, Australian Competition and Consumer Commission, GPO Box 3131, Canberra ACT 2601.

This publication replaces the Trade Practices Commission publication, Section 155 of the Trade Practices Act, published in October 2000 (reprinted 2006).

Important notice

Please note that these guidelines are a summary designed to give you the basic information you need. They do not cover the whole of the Trade Practices Act 1974 and are not a substitute for professional advice.

Moreover, because they avoid legal language wherever possible there may be some generalisations about the application of the Act. Some of the provisions referred to have exceptions or important qualifications. In most cases the particular circumstances of the conduct need to be taken into account when determining the application of the Act to that conduct.

Produced by the ACCC 03/08

Summary

The Trade Practices Act 1974 (the Act) contains powers that enable the Australian Competition and Consumer Commission (ACCC) to obtain information, documents and evidence in the course of its enforcement activity. Section 155 of the Act is the ACCC’s most widely used mandatory information-gathering power. It gives the ACCC the power to require a person to provide information, documents and/or give evidence under oath or by way of affirmation. This publication provides guidance about the ACCC’s procedures in exercising its s. 155 powers. Introduction

The ACCC is responsible for enforcing certain prohibitions contained in the Act such as:  certain anti-competitive conduct under the restrictive trade practices provisions in Part IV of the Act and the Competition Code forming part of the states’ Competition Policy Reform Acts—the ACCC is also responsible for considering authorisation applications and notifications that confer statutory exemptions from the restrictive trade practices provisions under Part VII  unconscionable conduct under Part IVA  conduct in breach of certain mandatory and voluntary industry codes under Part IVB  certain unfair consumer practices under Division 1, Part V  certain anti-competitive discriminatory conduct between shippers and certain other conduct in relation to international liner cargo shipping under Division 2, Part X  certain anti-competitive conduct and related conduct (including non-compliance with reporting requirements) in the telecommunications industry under Part XIB; hindering third party access to a declared facility; non-compliance with access obligations or undertakings; and non-compliance with ACCC arbitration directions under the general access regime in Part IIIA and the telecommunications access regime in Part XIC. The ACCC also has enforcement powers under Part 20 of the Telecommunications Act 1997. Investigations by the ACCC into breaches of the Act and other laws necessarily centre on the search for evidence of a breach, regardless of whether subsequent action involves litigation or some alternative enforcement strategy. Generally, ACCC investigators will seek voluntary statements from witnesses and, in some circumstances, obtain a formal record of interview. Witnesses are not compelled to answer questions in these situations. While the ACCC generally prefers to obtain its information through cooperation, there are circumstances where it is more appropriate to obtain such information through the use of its mandatory information-gathering powers, primarily s. 155 of the Act. Overview of s. 155

Section 155 confers wide powers on the ACCC to obtain information, documents and evidence when investigating possible contraventions of the Act (enforcement) and in connection with some of its adjudicative and telecommunications functions (regulatory). This guideline relates to the exercise of these powers in connection with the ACCC’s enforcement activities. In short, s. 155(1) provides that where the ACCC, its chairperson or deputy chairperson has reason to believe that a person has information, documents or evidence about a matter that constitutes, or may constitute, a contravention of the Act (or about some specific adjudicative and telecommunications matters), a member of the ACCC1 can issue a notice requiring the person to provide the information, documents or evidence. Specifically, a notice may require the recipient to:  furnish information in writing within the time and in the manner specified—s. 155(1)(a)  produce documents to the ACCC, or to a person specified in the notice—(s. 155(1)(b)— and/or  appear before a member of the ACCC or a specified senior ACCC staff member at a time and place specified in the notice to give evidence, either orally or in writing, and produce documents—s. 155(1)(c). The power is broadly similar to the investigatory powers of other Australian law enforcement agencies, including the Australian Taxation Office and the Australian Securities and Investments Commission. The power is only investigative, not judicial. In formulating a ‘reason to believe’ of the kind described in s. 155, the ACCC is not making a determination as to the facts or applying the law to them in any way that is binding or authoritative.2 Coverage of s. 155

Section 155 applies to:  matters that constitute or may constitute contraventions of the Act  the making of a decision in relation to: – revocation of an authorisation or revocation and substitution of an authorisation – notification of exclusive dealing conduct – collective bargaining notices – revocation of a clearance or revocation and substitution of a clearance

1 A ‘member of the Commission’ refers to the chairperson, deputy chairperson or a commissioner.

2 Pioneer Concrete Pty Ltd v TPC & Anor (1982), 152 CLR 460 (at 467).  an application for: – revocation of an authorisation or revocation of authorisation and substitution of a new authorisation  designated telecommunications matters, namely the performance of a function or the exercise of power by the ACCC conferred by or under3: – the Telecommunications Act 1997 – the Telecommunications (Consumer Protection and Service Standards) Act 1999, or – parts XIB or XIC of the Act. This publication will focus upon the application of s. 155 to matters that constitute, or may constitute, contraventions of the Act, as s. 155 notices are most commonly issued in this context.

Application to contraventions of the Competition Code of the states Each state’s Competition Policy Reform Act enacted a Competition Code in substantively similar terms to Part IV of the Act.4 The ACCC is responsible for enforcing the Competition Code under those Acts and part XIA of the Act.5 In effect, the ACCC has powers under the Competition Code of each state equivalent to s. 155 of the Act. Application to Part X Section 155 applies to ACCC investigations under Part X of the Act, which deals with international liner cargo shipping.6 Such investigations, undertaken in response to a complaint or a ministerial reference, would be concerned with:  the conduct of conference lines  the operation of registered conference agreements, or  the conduct of registered non-conference lines having a substantial degree of market power.

Application to s. 46A (trans-Tasman misuse of market power) Sections 155A and 155B extend the jurisdictional scope of s. 155 to contraventions of the trans-Tasman misuse of market power provision in s. 46A of the Act.

3 Section 155(9) of the Trade Practices Act.

4 Section 5 of the Competition Policy Reform (state or territory) Act.

5 Section 19 of the Competition Policy Reform (state or territory) Act and s. 150F of the Trade Practices Act.

6 Section 10.91, Part X of the Trade Practices Act. Section 155A enables the ACCC to serve a notice in New Zealand requiring information or documents relating to a s. 46A contravention or possible contravention. The response may be furnished to the New Zealand Commerce Commission. Section 155B provides for reciprocal arrangements for New Zealand Commerce Commission investigations. Section 155(8) permits the service of notices under ss. 155 and 155A (information and documents in trans-Tasman markets) relating to the same conduct. Application to the Broadcasting Services Act Under s. 97 of the Broadcasting Services Act 1992, the Australian Communications and Media Authority (ACMA), before allocating a pay-TV broadcasting licence, must ask the ACCC for a report indicating whether the allocation of the licence would contravene or fail to comply with specified provisions of the Trade Practices Act. Under s. 97(3) of the Broadcasting Services Act, the proposed licence allocation referred to the ACCC for report is deemed to be a ‘matter’ within s. 155(1) of the Trade Practices Act for the purposes of the ACCC’s consideration of ACMA’s request. The use of s. 155

The decision to issue a s. 155 notice is not taken lightly by the ACCC. The ACCC uses the power to properly investigate potential breaches of the Act and other relevant legislation. Before issuing a notice, ACCC staff will consider whether relevant information, documents or evidence are otherwise available, including whether these would be provided voluntarily. Information, documents and evidence may not be provided voluntarily for a range of reasons. A potential respondent may not want to cooperate with the ACCC. Other parties may not be able to cooperate because of confidentiality or other restraint. Some parties may wish to avoid being seen to be cooperating freely with the ACCC. Although information, documents or evidence may otherwise be available—for example, from other sources—it may be appropriate to use s. 155 powers to obtain such information, documents or evidence from a potential respondent for evidentiary purposes. The ACCC will also consider:  whether there is a risk that the information, documents or evidence may otherwise be destroyed, not provided or provided only on terms unacceptable to the ACCC  whether it is appropriate to obtain evidence in a formal manner (e.g. under oath or by way of affirmation)  whether the information, documents or evidence are necessary and relevant to the ACCC’s investigation  the time and cost implications of the s. 155 process for the ACCC and the recipients of the notices. The ACCC does not consider it appropriate to use its powers under s. 155 to conduct a ‘fishing expedition’ for information, documents or evidence. It does not, and cannot, under s. 155(1), issue a notice unless it has the requisite ‘reason to believe’ relating to the matter. Operation of the s. 155 power

Proper scope of a s. 155 notice Section 155 has been recognised as a broad conferral of investigatory power on the ACCC.7 Although s. 155 applies to a wide range of matters, including the making of specified decisions, applications for revocation of a clearance or revocation and substitution of a clearance and designated telecommunications matters, the power is primarily used in relation to matters that constitute, or may constitute, contraventions of the Act. To issue a notice under s. 155 for this purpose, it is sufficient but necessary that the ACCC, its chairperson or deputy chairperson has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter that constitutes, or may constitute, a contravention of the Act. The ‘reason to believe’ statement will go beyond a mere assertion that the relevant matter constitutes, or may constitute, a contravention. The notice will incorporate a sufficient description of the matter alleged to show the necessary relationship between the information sought and the matter in respect of which it is sought. The contravention to which the s. 155 notice relates is often described as the ‘matter’ that is the subject of the notice. The matter is one that may constitute a contravention of the Act. This includes concepts of possibility and futurity. Therefore, it is sufficient if:  there is a possibility that the conduct in question would contravene, or  the conduct in question constitutes an existing contravention or could in future constitute a contravention. While it is not necessary for the ACCC, its chairperson or deputy chairperson to set out the basis for their reason to believe in relation to the particular matter, they must have an actual belief and a proper factual basis for that belief.8 In other words, there must be reasonable

7 See, for example, SA Brewing Ltd v Baxt (1989), ATPR 40-967, per Fisher and French JJ.

8 TNT Australia Pty Ltd v Fels (1992), ATPR 41-190. grounds or cause for that belief. The belief must be objectively supportable by material facts and any other relevant information. The ACCC does not have to show that there is a reason to believe that the information, documents or evidence will establish or tend to establish a contravention (or even that they establish a prima facie case), merely that they relate to a matter that may constitute a contravention.9 The courts have upheld the use of s. 155 powers for a range of investigative purposes, including:  providing the ACCC with admissible evidence intended to be tendered in anticipated proceedings10  obtaining evidence to be used in penalty proceedings on the question of quantum of any penalty11  ascertaining whether there is a possible defence under s. 85(1) of the Act.12 Express limits on the use of s. 155 powers Section 155 expressly limits the ACCC in the use of its s. 155 powers relating to a claim for privilege against disclosure under the prices surveillance provisions of Part VIIA. In this regard, s. 155(2A) provides: (2A) A member of the Commission may not give a notice under subsection (1) merely because: a) a person has refused or failed to comply with a notice under subsection 95ZK(1) or (2) on the ground that complying with the notice would tend to incriminate the person, or to expose the person to a penalty; or b) a person has refused or failed to answer a question that the person was required to answer by the person presiding at an inquiry under Part VIIA, on the ground that the answer would tend to incriminate the person, or to expose the person to a penalty; or c) a person has refused or failed to produce a document referred to in a summons under subsection 95S(3), on the ground that production of

9 WA Pines Pty Ltd v Bannerman (1980), 30 ALR 559 at 561.

10 Kotan Holdings Pty Ltd & Ors v Trade Practices Commission (1991), ATPR 41-134.

11 idem.

12 Riley Mackay Pty Ltd v Bannerman (1977), 31 FLR 129. the document would tend to incriminate the person, or to expose the person to a penalty. Implied limits on the use of s. 155 powers

There are a number of implied limitations on the use of the power:  The power to issue a notice must be used in good faith, not for a collateral purpose, but to perform ACCC functions under the Act.13  The ACCC is required to, and will, have regard to the effect the exercise of the power has on the recipient, including the burden it imposes on the recipient. However, the mere fact that a notice may pose a substantial burden does not invalidate it provided the ACCC has given consideration to the burden and the benefit to be derived from obtaining the information or documents sought pursuant to the notice, and provided it is reasonable in the circumstances to seek the information requested.14  The burden of complying with a notice may be affected by the amount of time allowed to comply with it. The ACCC will provide reasonable time to comply with a notice. There are limits on the ACCC’s power to issue a notice after it has commenced proceedings, arising from such matters as:  its investigative power does not extend to evidence-gathering once an investigation is concluded and proceedings commenced in respect of that investigation  issuing s. 155 notices to respondents in proceedings instituted by the ACCC may interfere with rights and protection against self-incrimination and self-exposure to a penalty which apply in court proceedings15 and may interfere with the court’s inherent power to conduct its own proceedings. Accordingly, the ACCC is unlikely to issue a notice addressed to a respondent or non-party to ACCC proceedings where the notice relates to the subject matter of those proceedings.

13Riley Mackay Pty Ltd v Bannerman (1977), 31 FLR 129; and Kotan Holdings Pty Ltd & Ors v Trade Practices Commission (1991), ATPR 41-134.

14 Kotan Holdings Pty Ltd, loc. cit.; Pyneboard Pty Ltd v Trade Practices Commission (1982), ATPR 40-272 at 43,448–9.

15 Recent High Court of Australia and Federal Court of Australia decisions have held that there is no general law privilege against self-incrimination or self-exposure to a penalty available for corporate entities; see EPA v Caltex Refining Co Pty Ltd (1993), 68 CLR 127; and TPC v Abbco Ice Works (1994), ATPR 41-342. The power to issue a notice for the purposes of an ACCC investigation is not affected by another party instituting proceedings against the proposed addressee of the notice.16 A decision by the ACCC to begin proceedings, as distinct from actually beginning proceedings, does not necessarily preclude it from issuing a s. 155 notice.17 Formal requirements for a valid notice

A notice requiring the addressee to provide information or documents must:  identify the matter that constitutes or may constitute a contravention of the Act  specify the information or documents sought in enough detail to enable the addressee to know what is required  request information or documents that relate to the matter. Where a notice requires a person to attend an oral examination, the description of the matter determines the scope of the questions that the ACCC can ask at the examination. Given the investigative nature of the notice, there is no requirement that it will set out all the facts necessary to constitute a contravention or possible contravention. Nor is it necessary to set out the relevant evidence or information on which the ACCC based its decision to issue the notice. The matter that constitutes, or may constitute, a contravention of the Act is to be described simply but in enough detail for it to be evident on the face of the notice that the addressee is capable of furnishing information, producing documents or giving evidence relating to a matter. Scope of information and documents that can be required It is not appropriate for the ACCC under a s. 155 notice to require the addressee:  to give an interpretation of a document, except where explanations of symbols, codes, etc. may be necessary18  to seek out information or documents that are not in its possession, custody or control  to formulate an opinion on a particular matter.

16 Trade Practices Commission v Pioneer Concrete (Vic) Pty Ltd (1981), ATPR 40-229.

17 Kotan Holdings Pty Ltd & Ors v Trade Practices Commission (1991), ATPR 41-134; see also TPC v Ampol Petroleum (Vic) Pty Ltd (1994), ATPR 41-344.

18 Riley McKay Pty Ltd v Bannerman (1977), 31 FLR 129. A notice may be directed to a body corporate, but where information about awareness, knowledge or belief is required, the question should refer to particular persons (e.g. company officers, directors or employees).19 Variation Any member of the ACCC may vary a notice.20 The ACCC’s usual practice, however, is to have the person having the reason to believe (i.e. the chairperson or deputy chairperson) vary the original notice even where the variation does not relate to the core ‘reason to believe’ requirements for a valid notice, such as the time or date for compliance or the place at which documents are to be produced or an oral examination conducted. Where the variation does relate to the core ‘reason to believe’ requirements, it is always the person having the reason to believe (i.e. the chairperson or deputy chairperson) who varies the notice. Where the variation would be lengthy and/or complex, the ACCC generally prefers to revoke the original notice and issue a new one. An addressee who wishes to have a notice varied to allow for an extension of time should submit a written request outlining the reasons for the proposed variation. Addressees seeking interpretation or clarification should also put their requests in writing. The ACCC will give a written response. Service of the s. 155 notice Service of s. 155 notices is governed by regulation 12(3) of the Trade Practices Regulations. The regulation provides that a notice may be served on a person:  where the person has, in a document or noticed lodged with the ACCC, stated an address for service: – by delivering the notice to that address—by way of personal delivery or by registered post  in any other case: – where the person is a body corporate, by delivering the document personally to the manager or secretary of a body corporate or its registered office in Australia, or if the body corporate does not have a registered office in Australia, by sending it by registered post addressed to the body corporate at its principal place of business in Australia, or – where the person is not a body corporate, by delivering the document to the person or by sending the document by registered post addressed to the person at the last known address of the person.

19 idem.

20 See s. 33(3) of the Acts Interpretation Act 1901 (Cwlth) for the source of the ACCC’s power to vary s. 155 notices. While regulation 12(3) permits service by registered post, it is ACCC practice to serve notices personally in most circumstances. Alternatively, it will serve the notice on the addressee’s legal adviser where the adviser has instructions from the addressee to accept service on the addressee’s behalf. Compliance with the s. 155 notice

The notice will state the requirement of the addressee to provide information, produce documents or give oral evidence on specified day(s), at a specified place and a specified time. The information and documents required will be detailed in schedules to the notice. Reasonable time (usually two to three weeks) will be allowed to comply with a notice to provide information or documents or to attend an examination. However, shorter or longer periods of time may be given depending on the particular circumstances of a matter. The ACCC may consider requests for extension of the time limit. Any request for an extension should be made before the date for compliance specified in the notice, and reasons for the request must be provided. Usually the ACCC office in the state or territory where the response to the notice is to be lodged is specified in the notice. Where the addressee is remote from an ACCC office, the notice usually specifies response by registered mail to the nearest ACCC office. In some cases a venue other than an ACCC office may be nominated. This is unusual but may be done to assist compliance. An addressee is obliged to comply with a notice. The obligations of the addressee are set out in ss. 155(5) and (5A). In particular, an addressee of a notice must not:  refuse or fail to comply with a notice to the extent that the person is capable of complying with it, or  in purported compliance with a notice, knowingly furnish information or give evidence that is false or misleading. A person who contravenes s. 155(5) is guilty of an offence. In the case of a person not being a body corporate, the maximum penalty is a fine of $2200 or imprisonment for 12 months—s. 155(6A). In the case of a body corporate, the maximum penalty is a fine not exceeding $11 000—s. 4B(3) of the Crimes Act 1914 (Cwlth). Where the recipient of a notice issued under ss. 155(1)(a) or (b) refuses or fails to comply with that notice or knowingly furnishes information that is false or misleading, the ACCC may refer the matter to the Commonwealth Director of Public Prosecutions for consideration of whether the recipient should be prosecuted for an offence against s. 155(5). Alternatively, before referring the matter to the Commonwealth Director of Public Prosecutions, the ACCC may ask the recipient to provide an explanation for their non- compliance with the notice. Where a person at an examination held pursuant to a notice issued under s. 155(1)(c) gives evidence that the ACCC believes to be false or misleading or refuses to answer questions, the ACCC may refer the matter to the Commonwealth Director of Public Prosecutions for consideration of whether the recipient should be prosecuted for an offence under s. 155(5). Again, before any such referral, the ACCC member or staff conducting the examination may ask the examinee to provide their explanation orally at the examination. The examinee will be permitted to consult with a legal adviser before providing their explanation, even if this means adjourning the hearing.

Privilege against self-incrimination A person cannot choose not to comply with a valid notice on the basis that the material to be provided in response to the notice would expose the recipient to a penalty or might incriminate them.21 However, s. 155(7) renders information and documents obtained via s. 155 inadmissible as evidence against the person providing the information in any criminal proceedings other than:  proceedings under s. 155 (where the person providing the information is not a body corporate)  proceedings under the Act (where the person providing the information is a body corporate). Similar provisions apply to the evidence given and documents produced at an examination under s. 155(1)(c)—see s. 159. Legal professional privilege Section 155 does not require a person to produce a document that would disclose information that is the subject of legal professional privilege—s. 155(7B).

21 Pyneboard Pty Ltd v Trade Practices Commission (1983), 45 ALR 609. In any event, the High Court has also held that the privilege against self-incrimination is not available to corporations. See EPA v Caltex Refining Co Pty Ltd (1993), 178 CLR 477. Conduct of an oral examination

General An oral examination may be conducted before the ACCC but is invariably conducted before a member of the ACCC delegated to hear the evidence under s. 25 of the Act22 or before a member of the staff assisting the ACCC who is an SES employee and is specified in the notice. Such examinations are private hearings.23 Covering letter The notice will be issued with a covering letter outlining what is expected of the examinee in the examination. It will explain that the examinee may have their legal adviser present, subject to such reasonable conditions as the ACCC may wish to impose (e.g. the provision of a confidentiality undertaking by the legal adviser). The role of the legal adviser will also be specified in the letter. The letter will offer to discuss the matter and will nominate an ACCC contact officer and telephone number for inquiries. Practical arrangements Examinations are normally conducted within standard business hours. Where an examinee explains in writing that exceptional circumstances prevent or unreasonably impede attendance within business hours, the ACCC may, at its discretion, reschedule an examination outside business hours. Examinations will, wherever possible, be held in the ACCC office in the state or territory where the examinee resides. An examinee will not normally be examined for more than 1½ hours at a time before being given a 15-minute adjournment. As a general guide, the examination time for one examinee on any one day will not exceed 4½ hours. ACCC staff will arrange suitable stationery, telephone and photocopier access and refreshments (but not meals) for all participants at the examination.

Use of oath or affirmation Section 155(3) provides that the ACCC may require evidence to be given under oath or by way of affirmation. For that purpose, any member of the ACCC may administer an oath or

22 Under s. 8A(4) of the Trade Practices Act the ACCC Chairperson may direct that, to exercise the powers of the ACCC on a specified matter (including a specified s. 155(1) (c) matter), designated associate members be regarded as members in relation to that matter.

23 Constantine v Trade Practices Commission (1994), ATPR 41-291. affirmation. If the notice requires a person to appear before a member of staff assisting the ACCC to give evidence, the staff member may administer an oath or affirmation— s. 155(3A). It is the ACCC’s policy to administer an oath or affirmation as a matter of course in s. 155(1) (c) examinations.

The ACCC’s use of counsel Counsel and/or an instructing solicitor may assist the member of the ACCC or SES staff hearing the evidence. ACCC staff will also be present. Counsel usually assists by asking questions during the examination. Examinee’s legal representation As a matter of procedural fairness the ACCC will permit an examinee the assistance of a legal adviser, except in exceptional circumstances.24 While an examinee is generally permitted to be legally represented, there may be objections to a particular legal adviser if that legal adviser’s presence would prejudice the investigation —for example, where:  the legal adviser is being instructed by more than one examinee in the same matter25  the legal adviser also acts for the subject of the investigation, not being the examinee  the legal adviser declines to give an undertaking not to disclose the content of the examination to any person other than the examinee until such time as the ACCC has concluded its inquiry or otherwise consents26  the legal adviser may themself be at a real risk of investigation by the ACCC in relation to the matter.27 The examinee’s legal adviser will normally only be permitted to:  object to questions asked as being unclear, unfair, likely to reveal information over which a claim of legal professional privilege could properly be made, or irrelevant to the subject matter of the examination  re-examine the examinee to clarify any response to an earlier question  make submissions on any relevant matter at the completion of the examination.

24 idem.

25 See National Crime Authority v A, B and D (1988), 78 ALR 707.

26 Constantine, loc. cit.

27 See Australian Securities Commission v Bell (1991), 32 FCR 517 at 521 per Lockhart J. A legal adviser who prejudices the examination—for example, by continually objecting on minor issues to the extent of being obstructive—may be excluded. Only one legal adviser will normally be permitted to attend, but this is ultimately an issue for discussion in each case. Where more than one legal adviser attends, usually only one will be permitted to participate.

Direction to examinee not to disclose The ACCC has the power to direct an examinee not to disclose the content of the examination to any person other than a legal practitioner (for the purpose of obtaining legal advice) until such time as the ACCC has concluded its inquiry or otherwise consents.28 This direction to the examinee protects the private nature of the s. 155 process as far as is reasonably practicable. The direction prevents examinees from disclosing to third parties (such as the company employing the examinee) what was said in the examination or the fact that certain kinds of information were disclosed in the examination. In the ACCC’s view, the direction does not prevent the examinee from otherwise discussing with senior company officials and lawyers the events the ACCC is investigating and the extent to which breaches of the Act may have occurred. As a general rule the ACCC will send a letter to the examinee withdrawing the direction to non-disclosure at an appropriate time. This will usually be when the investigation has been completed. The period of non-disclosure would not extend beyond the institution of proceedings in respect of matters the subject of the investigation.

Exclusion of third parties Third parties are excluded from s. 155(1)(c) examinations notwithstanding that they may have a direct interest in the evidence to be given. For example, an employer whose company is under investigation has no right of attendance at the examination of an employee. The exclusion of third parties is supported on the basis that s. 155 examinations are investigative and private rather than judicial proceedings, so that no right of attendance arises. Attendance by the ACCC will include only members of the ACCC, legal advisers and staff of the ACCC directly involved in the investigation plus transcription staff. Adjournment An examination may be adjourned to a date advised to the examinee when the examination is not concluded on one day or where the ACCC considers there may be further questions

28 Constantine, loc. cit. to be put to the examinee at a later date (e.g. after other examinations have been conducted). Transcript A full transcript of the evidence given by an examinee will normally be made available to the examinee as soon as reasonably practicable after the conclusion of the examination, including any resumption of adjourned examinations. Transcripts made available to examinees will be accompanied by a letter inviting them to identify any errors in the transcript by a specified date and advising them that the transcripts are confidential. Use of information, documents and evidence obtained under s. 155

Use for investigative purposes There are no particular provisions setting out requirements for ACCC use of information, documents or evidence obtained in response to a notice, although ss. 155AAA and 155AA provide some limits to the disclosure of such information, documents or evidence (see below). However, it is implicit that information, documents or evidence provided in response to a notice will be used for the purposes for which the notice was issued, that purpose normally being to assist the ACCC in investigating a possible breach of the Act and to reach a view as to whether a breach has occurred. Section 156 provides the ACCC with a right to inspect, retain, copy and take extracts from documents provided in response to a notice. Where the ACCC has retained documents, s. 156 enables the provider to obtain a certified copy of those documents. The certified copy is taken as evidence of the original document in all courts. The provider of the information is entitled to inspect the documents at the ACCC’s premises and to make copies or take extracts before being given a certificate.

Disclosure and confidentiality Section 155 imposes no express obligation of confidentiality in respect of information provided by a recipient of a notice, including information that may be commercially sensitive. However, there are certain disclosure protections for information, which are contained in ss. 155AAA and 155AA. Protection of certain information (s. 155AAA) Section 155AAA prohibits ACCC members or staff (ACCC officials) from disclosing protected information, which includes information obtained by the ACCC under s. 155 that relates to a matter arising under a core statutory provision, except: (a) when the ACCC official is performing duties or functions as a ACCC official, or (b) when the ACCC official or the ACCC is required or permitted by: i. the Act or any other law of the Commonwealth, or ii. a prescribed law of a State or internal Territory to disclose the information. The ACCC is not precluded from disclosing protected information to counsel, external law firms or experts for the purpose of advising the ACCC.

Disclosure of protected information as specifically permitted by s. 155AAA Disclosure to certain agencies Specific limitations apply if the intended disclosure of information obtained under s. 155 is to assist a third party (such as the Australian Securities and Investments Commission, the Australian Communications and Media Authority, the Australasian Performing Right Association, or a state, territory or foreign government body) in the performance of their duties or functions. Any decision of this type must be made by the chairman. The chairman may also impose conditions upon the disclosure. Disclosure to ministers, departments and Royal Commissions An ACCC official may disclose s. 155 information to the relevant minister or department, and to a Royal Commission. Disclosure of statistics and summaries ACCC officials may disclose summaries or statistics derived from protected information, (that are not likely to enable the identification of a person), information with consent, or information that has become publicly available. ACCC contacts

Infocentre 1300 302 502 Website www.accc.gov.au Callers who are deaf or have a hearing or speech impairment can contact the ACCC through the National Relay Service, www.relayservice.com.au. TTY or modem users—phone 13 3677 and ask for 1300 302 502. Voice-only (speak and listen) users—phone 1300 555 727 and ask for 1300 302 502.

Addresses National office 23 Marcus Clarke Street Canberra ACT 2601 GPO Box 3131 Canberra ACT 2601 Tel: (02) 6243 1111 Fax:(02) 6243 1199

New South Wales Level 7, Angel Place 123 Pitt Street Sydney NSW 2000 GPO Box 3648 Sydney NSW 2001 Tel: (02) 9230 9133 Fax:(02) 9223 1092

Victoria Level 35, The Tower 360 Elizabeth Street Melbourne Central Melbourne Vic 3000 GPO Box 520 Melbourne Vic 3001 Tel: (03) 9290 1800 Fax:(03) 9663 3699

Queensland Brisbane Level 3 500 Queen Street Brisbane Qld 4000 PO Box 10048 Adelaide Street Post Office Brisbane Qld 4000 Tel: (07) 3835 4666 Fax: (07) 3832 0372

Townsville Level 6 370 Central Plaza Flinders Mall Townsville Qld 4810 PO Box 2016 Townsville Qld 4810 Tel: (07) 4729 2666 Fax:(07) 4721 1538

Western Australia 3rd floor, East Point Plaza 233 Adelaide Terrace Perth WA 6000 PO Box 6381 East Perth WA 6892 Tel: (08) 9325 0600 Fax: (08) 9325 5976

South Australia Level 14 13 Grenfell Street Adelaide SA 5000

Northern Territory Level 8 National Mutual Centre 9–11 Cavenagh St Darwin NT 0800 GPO Box 3056 Darwin NT 0801 Tel: (08) 8946 9666 (general) Tel: (08) 8946 9610 (reception) Fax: (08) 8946 9600

Tasmania 3rd floor, AMP Building 86 Collins Street (Cnr Elizabeth and Collins streets) Hobart Tas 7000 GPO Box 1210 Hobart Tas 7001 Tel: (03) 6215 9333 Fax: (03) 6234 7796