Enforcement and the role of the ACCC
The ACCC is Australia's competition regulator. It adopts a range of strategies designed to promote and enforce compliance with Australia's competition laws. These strategies cover a broad compliance and enforcement spectrum, ranging from simply speaking with the business and resolving the issue administratively through to bringing action in court.
Potential breaches of Australia's competition laws come to the attention of the ACCC through a variety of avenues including complaints, investigations undertaken by the ACCC and self-reporting.
Complaints: The ACCC relies upon complaints to identify conduct worthy of further investigation and possible enforcement action. These complaints may come from the customers, competitors or suppliers of businesses involved in conduct that breaks or may break the law.
ACCC-initiated investigations: The ACCC actively monitors particular industries and practices and proactively uses its powers to gather information.
Cooperation policy: The ACCC also relies upon its cooperation policy to detect possible breaches of the competition laws. The policy provides incentives to businesses who may be acting in breach of the law to come forward and cooperate with the ACCC.
Immunity policy (for cartel conduct): It is may be possible to obtain complete immunity from the cartel prohibitions if you report cartel activity to the ACCC. This policy provides businesses that participate in a cartel with a strong incentive to bring the cartel to the attention of the ACCC.
The ACCC uses a range of investigative tools when investigating potential breaches of competition law.
Voluntary requests: The ACCC will typically commence its investigations by asking persons or businesses with potentially relevant information to provide such information voluntarily.
Section 155 notices: The ACCC is able to issue statutory demands for information (known as section 155 notices) where it has reason to believe that an individual or business is capable of providing information, documents or evidence about a matter that may breach competition laws. Failure to comply with a section 155 notice, or providing false or misleading information, constitutes an offence and penalties (including imprisonment for up to 12 months) can be imposed.
Search and seizure powers: The ACCC may apply to the court for a warrant that permits its employees to enter premises and search for and seize evidence relating to potential competition law contraventions.
Phone tapping and covert surveillance: Where the ACCC is investigating cartel conduct that may warrant criminal prosecution, the ACCC may involve the Australian Federal Police, who have at their disposal the power to tap phones and undertake covert surveillance.
The ACCC adopts a range of strategies aimed at ensuring compliance with Australia's competition laws. The ACCC's primary goal is to encourage compliance with the law and this goal is pursued through the following means:
Compliance strategies: The ACCC promotes compliance with Australia's competition laws through education programs and by issuing guidelines that help businesses understand the law.
Voluntary compliance strategies: The ACCC undertakes a range of initiatives aimed at engendering voluntary compliance with competition and consumer laws. These initiatives, which build upon the educational programs, range from assisting with the development of individual compliance programs to sector-wide initiatives, such as the development of voluntary industry codes of conduct.
Administrative resolution: Where it uncovers a breach of the law the ACCC has the discretion to resolve the matter by reaching an agreement with the business in question. This avoids the matter having to go to court. When deciding whether to reach such an agreement the ACCC will consider the extent of the harm caused by the contravention, the deliberateness of the conduct and whether the business in question has previously breached the law.
Enforceable undertakings: Where the ACCC forms the view that it would not be appropriate to resolve the matter by reaching an agreement with the business in breach, there is still scope to avoid court proceedings. The ACCC may accept a court enforceable undertaking under which the business that has broken the law undertakes to cease the conduct and remedy any harm caused by the conduct.
For example, a business may have engaged in exclusive dealing conduct in the supply of goods and services to its customers. The business may provide an enforceable undertaking to the ACCC:
- acknowledging that its conduct has breached the CCA
- undertaking to cease the conduct which has breached the CCA
- undertaking to provide compliance training on the CCA to its staff
- undertaking to provide redress to anyone who has been harmed by its conduct.
Litigation: In some instances, the ACCC will form the view that the matter should be taken to court. Court proceedings are likely where the conduct is particularly egregious, where the alleged contravener denies liability (thus ruling out options such as administrative resolution or court enforceable undertakings) and where the alleged contravener has a history of infringements.
ACCC's power to grant exemption from certain competition law prohibitions
There may be times when businesses wish to engage in legitimate and pro-competitive conduct that is caught by one of the competition law prohibitions. The ACCC has the power to declare conduct exempt from many of the competition law prohibitions under the authorisation and notification processes. Exemption cannot be granted retrospectively so it is essential that exemption is granted before the conduct is engaged in.