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
© Commonwealth of Australia 2003
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
contents
Summary4
Introduction5
Overview of s. 155
6
Coverage of s. 155
Application to contraventions of the Competition Code of the states
Application to Part X
Application to s. 46A (trans-Tasman misuse of market power)
Application to the Broadcasting Services Act 6
7
7
8
8
The use of s. 155
8
Operation of the s. 155 power
Proper scope of a s. 155 notice
Express limits on the use of s. 155 powers
9
9
10
Implied limits on the use of s. 155 powers
11
Formal requirements for a valid notice
12
Scope of information and documents that can be required
12
Variation13
Service of the s. 155 notice
13
Compliance with the s. 155 notice
Privilege against self-incrimination
Legal professional privilege
14
15
16
Conduct of an oral examination
16
General16
Covering letter
16
Practical arrangements
16
Use of oath or affirmation
17
The ACCC’s use of counsel
17
Examinee’s legal representation
17
Direction to examinee not to disclose
18
Exclusion of third parties
19
Adjournment19
Transcript19
Use of information, documents and evidence obtained under s. 155
Use for investigative purposes
Disclosure and confidentiality
Protection of certain information (s. 155AAA)
19
19
20
20
ACCC contacts
23
4
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 informationgathering 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.
5
6
Section 155 of the Trade Practices 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
1
2
A ‘member of the Commission’ refers to the chairperson, deputy chairperson
or a commissioner.
Pioneer Concrete Pty Ltd v TPC & Anor (1982), 152 CLR 460 (at 467).
Section 155 of the Trade Practices Act
• collective bargaining notices
• revocation of a clearance or revocation and substitution of a clearance
• 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.
3
4
5
6
Section 155(9) of the Trade Practices Act.
Section 5 of the Competition Policy Reform (state or territory) Act.
Section 19 of the Competition Policy Reform (state or territory) Act and s. 150F of the
Trade Practices Act.
Section 10.91, Part X of the Trade Practices Act.
7
8
Section 155 of the Trade Practices Act
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.
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.
Section 155 of the Trade Practices Act
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.
7
See, for example, SA Brewing Ltd v Baxt (1989), ATPR 40-967, per Fisher and French JJ.
9
10
Section 155 of the Trade Practices Act
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 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:
8 TNT Australia Pty Ltd v Fels (1992), ATPR 41-190.
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.
11idem.
12 Riley Mackay Pty Ltd v Bannerman (1977), 31 FLR 129.
Section 155 of the Trade Practices Act
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 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
13 Riley 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 40272 at 43,448–9.
11
12
Section 155 of the Trade Practices Act
• 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.
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.
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.
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.
Section 155 of the Trade Practices Act
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.
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.
18 Riley McKay Pty Ltd v Bannerman (1977), 31 FLR 129.
19idem.
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.
13
14
Section 155 of the Trade Practices Act
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.
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.
Section 155 of the Trade Practices Act
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 noncompliance 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
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.
15
16
Section 155 of the Trade Practices Act
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).
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.
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.
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 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
24idem.
Section 155 of the Trade Practices Act
17
18
Section 155 of the Trade Practices Act
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.
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.
25See National Crime Authority v A, B and D (1988), 78 ALR 707.
26 Constantine, loc. cit.
27See Australian Securities Commission v Bell (1991), 32 FCR 517 at 521 per Lockhart J.
28 Constantine, loc. cit.
Section 155 of the Trade Practices Act
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 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.
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Section 155 of the Trade Practices Act
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
Section 155 of the Trade Practices Act
(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.
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ACCC contacts
Infocentre 1300 302 502
Websitewww.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 133 677 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
Queensland
South Australia
23 Marcus Clarke Street
Canberra ACT 2601
Brisbane
Level 14
13 Grenfell Street
Adelaide SA 5000
GPO Box 3131
Canberra ACT 2601
Level 3
500 Queen Street
Brisbane Qld 4000
Tel: (02) 6243 1111
Fax: (02) 6243 1199
PO Box 10048
Adelaide Street Post Office
Brisbane Qld 4000
New South Wales
Tel: (07) 3835 4666
Fax: (07) 3832 0372
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
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
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