The Australian Competition and Consumer Commission has today released updated guidelines on its use of mandatory information gathering powers under the Competition and Consumer Act 2010 (the CCA). This includes a basic guide for individuals and small businesses.
Section 155 of the CCA contains compulsory information gathering powers that the ACCC can use to require parties to provide information and documents, or give evidence under oath or affirmation.
“The ACCC’s section 155 powers are an important tool in both enforcement investigations and informal merger reviews. This publication provides guidance to the business community, their advisers, and the public about the ACCC’s procedures and approach in exercising its section 155 powers,” ACCC Commissioner Roger Featherston said.
The Government’s Competition Policy Review recommended the ACCC’s section 155 guidelines be updated to address the “digital burden” on recipients of a section 155 request. In updating the previous 2008 guidelines, the ACCC has consulted with relevant legal and business stakeholders.
A key change to the guidelines concerns consultation between the ACCC and the recipient of a section 155 notice. Where appropriate, the ACCC may consult with a proposed recipient of a notice before it is issued, leading to efficiencies for both the recipient and the ACCC by better understanding the recipient’s document management system and digital environment.
The ACCC has also published Section 155 Information Gathering Powers: A Basic Guide for Individuals and Small Business, which has been developed after consultation with relevant small business group stakeholders and includes FAQs and examples of parts of a section 155 notice for information.
“This guide has been prepared by the ACCC to assist individuals and small business to understand the ACCC’s section 155 process and what they should do if they receive a notice,” Mr Featherston said.
Notes to editors
The ACCC must follow certain procedures when exercising its section 155 powers and will take into consideration the value of the information to the ACCC’s investigation, as well as the time and cost burden of the notice on the recipient.
The Government has developed exposure draft legislation for consultation with the public and States and Territories in relation to, among other things, proposed changes to section 155. In particular, it proposes a “reasonable search” defence to a failure to comply with a section 155 notice. While these guidelines do not currently address these proposed changes to section 155, they will be updated in the future as required.
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