ACCC warns of aggressive response to tactics to frustrate law processes

Tactics to frustrate the Australian Competition and Consumer Commission in its enforcement of the competition law would draw an aggressive response, ACCC Chairman, Mr Graeme Samuel, will warn trade practices advisers at a competition law conference in Sydney tomorrow (Saturday).

The tactics included manoeuvres by lawyers to delay the litigation processes, witnesses lying to ACCC investigators, including in formal interviews; and the destruction of important documents, he said.

"It has come to our attention that some legal advisers are interpreting our desire for speedy litigation as an invitation for them to delay litigation in the hope this will persuade us to back off.

"Nothing could be further from the truth. Where the ACCC identifies delaying tactics, we are putting in place appropriate counter measures to ensure these do not succeed.

"We are aware of the legal firms employing these tactics and I want to send a warning to them that we are becoming increasingly intolerant of their attitude. We anticipate that the Federal Court will be sympathetic to approaches by the ACCC to counter these tactics.

"Those who employ these techniques in the hope of gaining some legal advantage will instead find a very aggressive response from the ACCC and its lawyers".

For some time the ACCC has been concerned that responses to section 155 notices* have been less than thorough.

"The ACCC has been carefully monitoring responses to its statutory notices and discussing our concerns with the Director of Public Prosecutions. The ACCC is concerned that less than candid responses may be becoming more common. There are penalties under the Trade Practices Act for non-compliance with such notices including imprisonment for up to 12 months.

"Investigations also usually involve numerous voluntary interviews, not under section 155".

Mr Samuel will also warn that even in a voluntary interview providing false or misleading information to a Commonwealth officer may breach the Criminal Code and be punishable by up to two years in jail.

Penalties ranging from one to five years also apply for the destruction of documents to prevent them from being used in legal proceedings, giving false testimony and intimidating witnesses.

"It is critical that the integrity of the ACCC's information and evidence gathering processes are maintained.

"We regard this issue very seriously and we will not shy away from pursuing a matter with the assistance of the DPP where there is evidence that a person has not complied with his or her obligations under a section 155 notice or has lied to, or misled, ACCC investigators".

Background

*Section 155 gives the ACCC power to obtain information, documents and evidence when investigating possible contraventions of the Trade Practices Act 1974 and in some of its adjudication work.