The ACCC can ask a corporation for information or documents it is required to keep, generate or publish under a prescribed industry code (i.e. the Franchising Code, Horticulture Code, Oilcode, Unit Pricing Code and Wheat Port Code). The corporation has 21 days to provide these documents.
While this power allows the ACCC to randomly select traders to audit, traders will usually be targeted that have either a history of complaints or non-compliance (including prior dealings with the ACCC), or that operate in an industry that generates a disproportionate number of complaints.
The power enables the ACCC to obtain from a corporation any information or documents it is required to keep, to generate or to publish under the relevant industry code.
For a horticulture trader, this may include:
- terms of trade
- horticulture produce agreements
- written evidence of agreed prices for horticulture produce
- agents’ records.
For a franchisor, this may include:
- disclosure documents
- franchise agreements
- marketing fund statements.
From 1 January 2015, a franchisor will be required to keep all documents that the Franchising Code requires, or allows, a franchisee or prospective franchisee to give to it in writing. This includes any documents provided electronically. For example, a franchisor will be required to keep the following documents:
- professional advice statement
- notice of dispute
- request not to disclose former franchisee’s details.
A franchisor that makes any statements or claims in its disclosure document which rely on another document to support the statement or claim, must also keep that document.
If you are audited, the audit notice you receive will clearly set out the information and documents you need to provide and the audit process involved.
An overview of the process the ACCC follows when undertaking an industry code audit:
If you think you may have a problem complying with the notice, you should contact the specified ACCC officer as soon as possible to discuss your situation. We may decide to extend the notice period to give you more time to comply with the notice, or we may decide to vary the notice.
If the audit reveals severe, deliberate breaches of a prescribed code (or other provisions of the Competition and Consumer Act 2010) by a trader, enforcement action may in some cases be warranted. If the audit reveals minor breaches, we may seek to resolve the matter administratively. All matters will be handled in accordance with the ACCC’s Compliance and Enforcement policy.
You should be aware that giving false or misleading information or documents to the ACCC in response to an audit notice is a serious offence.