Information gathering under s 239AJ of the Water Act
The ACCC has compulsory information gathering powers under section 239AJ of the Water Act 2007 (Water Act).
What we can request
The ACCC can issue you a notice under s 239AJ requesting that you:
- give information, for example, by providing written responses to questions
- produce documents, such as business records
- attend an ACCC examination to provide oral evidence.
If you receive a notice, this does not necessarily mean you are under investigation or have broken the law. You may be a third party able to assist the ACCC in an investigation.
We will only issue a notice if we have ‘reason to believe’ you can provide materials relating to our role in water markets.
Read about our role in water markets.
When you receive a notice
The cover letter and notice will contain important information, including:
- the matter the notice is about
- the information or documents you must provide
- how to provide the information or documents
- the due date for providing the information or documents
- how to contact the ACCC if you have any questions.
If the notice requires you to attend an examination, it will state:
- the place (usually an ACCC office), date, and time, and
- any documents you must bring to give to the ACCC.
If you have any questions about the notice, you should immediately contact the ACCC officer listed on the cover letter.
What you need to do
If you receive a notice, you must comply with it. You may engage a lawyer to assist. You are responsible for any costs associated with your response to the notice.
You must:
- provide a response to requests for information and documents by the due date
- answer all questions fully and honestly
- attend any oral examination at the place, date, and time stated in the notice.
Preparing a response
A notice that requests information and documents may require you to search different sources such as hard copy and electronic documents.
Contact the ACCC immediately if you have genuine reasons why you cannot respond to a notice in full by the due date.
It will be difficult for the ACCC to consider granting an extension or making changes to the notice if requested close to the due date.
Reasonable search defence
You will not breach the Water Act for refusing or failing to comply with a s 239AJ notice to produce documents if you:
- can prove that, after a reasonable search, you were not aware of the documents
- provide a written response to the notice to the ACCC, and
- describe in that written response the scope and limitations of the searches you made.
This is known as the ‘reasonable search defence’.
Read more about the reasonable search defence in Section 239AJ notices: A basic guide for individuals and small businesses ( PDF 395.77 KB ) .
Legal professional privilege
Legal professional privilege protects confidential communications between you and your lawyers.
You are not required to produce material that attracts a valid claim of legal professional privilege.
It is your responsibility to assess whether:
- legal professional privilege applies
- a document, or part of a document, should be withheld or redacted.
Read more about:
- legal professional privilege in Section 239AJ notices: A basic guide for individuals and small businesses ( PDF 395.77 KB )
- how the ACCC approaches claims of legal professional privilege.
After you have responded
We will confirm we have received your response to a notice for information or documents.
Where appropriate, a transcript of any oral examination you attend will usually be sent to you.
We will contact you if we have any concerns about your response.
If you don't comply
There are serious consequences for refusing or failing to comply with a notice by the due date. This can include fines or imprisonment.
It is a criminal offence to give false or misleading information, documents or evidence to the ACCC.
If you do, we may refer the matter to the Commonwealth Director of Public Prosecutions.
More information
