Full federal court reconfirms investigative powers of ACCC

The Full Federal Court today re-confirmed the strong powers of the Australian Competition and Consumer Commission to investigate possible breaches of the Trade Practices Act 1974, unanimously dismissing an appeal lodged by Seven Network Limited.

The decision upholds an earlier decision of the Federal Court, where Justice Branson dismissed Seven Network's challenge to a Notice issued under section 155* of the Act which required Seven Network to furnish the ACCC with information relating to a matter it was investigating.

The Notice related to two items broadcast on the Seven Network's Today Tonight program in October 2003 and January 2004 which featured the Wildly Wealthy Women Millionaire Mentoring Program. The ACCC is investigating the Mentoring Program and issued a Notice to Seven Network requesting information regarding the identity of persons involved in the creation and production of the items aired on Today Tonight. 

In proceedings instituted in the Federal Court in April 2004, Seven Network alleged that the ACCC had improperly used its powers under section 155 by issuing Seven Network with the Notice. In July 2004 Justice Branson rejected Seven Network's application for the court to declare the Notice unauthorised, invalid and of no effect.

Seven Network appealed against the decision, arguing that Justice Branson was incorrect in concluding that the Notice had been properly issued. Seven Network argued on appeal that it did not make any of a number of allegedly misleading representations that the ACCC claims were made in the items broadcast on Today Tonight and that the Notice did not disclose the necessary relationship between the information sought and the possible contraventions specified in the Notice.

In today's judgment, Justices Tamberlin, Sackville and Emmett upheld the decision of Justice Branson and rejected Seven Network's application to overturn the previous ruling and declare the Notice unauthorised, invalid and of no effect.

"…it cannot be said that the matters identified in the Notice (which include the transcripts of the program), taking into account as yet undiscovered facts, are incapable of constituting contraventions by Seven Network of s52** of the TP Act ", Justices Sackville and Emmett said.

Justice Tamberlin concurred and added that the "[m]aterial is sought for the purposes of investigation and not for determination. The latter is for the courts".

The decision further confirms the ACCC's ability to use section 155 to identify individuals who are expected to be able to provide information relevant to matters being investigated. The Full Court upheld Justice Branson's conclusions, dismissing Seven Network's argument that the Notice is invalid on the basis that it merely seeks to identify possible witnesses in respect of a possible contravention of the Act.

"In our view, it is clear enough (and would be clear to the recipients of the Notice) that the names and addresses of the persons responsible for the content of the Today Tonight programs, including the website, would assist the ACCC in its investigation of whether Seven Network contravened s52 of the TP Act”, Justices Sackville and Emmett said.

ACCC Chairman, Mr Graeme Samuel, said the decision was significant because it confirms section 155 as a primary investigative tool that allows the ACCC to gather information relevant to whether a breach of the law may have occurred.

"Requesting information from a party is not an allegation of wrongdoing and parties should have no objection to assisting with inquiries, unless they have something to hide", Mr Samuel said.

*Section 155 of the Trade Practices 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, and limited powers to enter premises and inspect and/or copy documents where the Chairman of the ACCC has a reason to believe that a party, either the recipient of the Notice or another party, may have engaged in a breach of the Act.

** Section 52 of the Trade Practices Act prohibits corporations in trade or commerce from engaging in misleading or deceptive conduct, or conduct that is likely to mislead or deceive.