|A. COMPETITION LEGISLATION, REGULATOR AND PENALTIES
||What is the key competition legislation?
||Competition and Consumer Act 2010 (CCA)
||What is prohibited?
||1. Cartel conduct and other anti-competitive agreements 2. Resale price maintenance 3. Anti-competitive exclusive dealing
||Who is the primary competition regulator?
||Australian Competition and Commission (ACCC)
||Which regulator will conduct competition dawn raids?
||The ACCC. The ACCC may be assisted by the Australian Federal Police, as well as IT consultants.
||What are the relevant penalties for anti-competitive conduct?
||The maximum penalties for a corporation that has contravened the prohibitions against anti-competitive conduct in the CCA are, per contravention, the greater of AUD10 million or three times the value of the benefit gained from the anti-competitive conduct (or, if that not be determined, 10% of annual group turnover in Australia in the preceding 12 months). The maximum penalties for individuals who contravene or are involved in a contravention of the CCA are AUD500,000 per breach. For contravention of the criminal cartel provisions, individuals can be imprisoned for up to 10 years.
||What are the penalties for obstructing investigations?
||Obstruction of a search, including failure to provide reasonable assistance or refusing to answer questions, is a criminal offense. Penalties include fines as well as imprisonment for up to 12 months.
||Is there a leniency regime and what does it provide?
||Yes. The ACCC has an Immunity and Cooperation Policy for Cartel Conduct. The Prosecution Policy of the Commonwealth includes a specific section covering immunity for criminal cartel conduct. This is essentially in the same terms as the ACCC’s Immunity Policy. In addition, the ACCC also has a Cooperation Policy for Enforcement Matters, which sets out the ACCC’s position in relation to immunity and leniency applications resulting from cooperation in ACCC enforcement matters more generally. The Cooperation Policy applies to all anti‑competitive conduct in contravention of the CCA.
|B. DAWN RAID SEARCH POWERS
||When can the regulator conduct a raid?
||The ACCC can apply to a magistrate for a warrant in relation to premises. A magistrate may issue the warrant if the magistrate is satisfied by information by the ACCC that there is evidential material on the premises, i.e. a document or thing that may afford evidence relating to a contravention of the CCA (or certain other legislation).
||Does the regulator require a warrant before it can conduct a raid?
||Yes. The ACCC may also conduct a search if the occupier of the premises consents to the search.
||Can the regulator's officers be made to wait for the company's legal counsel before commencing a raid?
||The ACCC has no obligation to wait for legal counsel to arrive before proceeding with its investigation. The ACCC may agree in its discretion to wait for legal counsel.
||What powers of search does the regulator have during a raid?
||A search warrant authorises the executing officer to: enter the premises; search the premises for the kind of evidential material specified in the warrants, and seize things of that kind found on the premises; make copies of the kind of evidential material specified in the warrant found on the premises; operate electronic equipment at the premises to see whether the kind of evidential materials specified in the warrant is accessible by doing so; take equipment and material on to the premises and use it for any of the above purposes; take photos and videos of anything at the premises for a purpose incidental to the execution of the warrant.
||Can officers demand passwords to allow access to computers, servers, files etc.?
||There is a general obligation to provide reasonable facilities and assistance, and to answer questions relating to the execution of the warrant. This would include providing passwords and other assistance to facilitate inspection of electronic files. An executing officer can obtain an order from the court requiring a person with knowledge of a computer or computer system to provide assistance (including to access, transfer and/or convert data). The specified person must be a person who is reasonably suspected of having committed the contravention stated in the search warrant, the owner or lessee of the computer, or an employee of the owner or lessee of the computer.
||Can employees leave the premises (taking laptops and other devices) during a raid?
||No. This is likely to be seen as obstruction. Permission would be needed for anyone to leave and they would also need permission to take laptops etc.
|C. REGULATORS' RIGHTS TO SEIZE AND RETAIN INFORMATION
||Do officers have powers to seize documents and information during a raid?
||Do officers have powers to retain documents and information. If so, for how long?
||In relation to things that have been seized (as opposed to copies of documents and files), those things must be returned within 120 days, subject to any contrary order of a court.
||Can the officers secure documents and information, and prohibit access to them?
||If an executing officer reasonably believes that expert assistance is required to operate equipment that may provide access to the kind of evidential material specified in the warrant, and that the material may be destroyed, altered or otherwise interfered with if no action is taken, then the executing officer may do "whatever is necessary" to secure the equipment (including locking it up and/or placing a guard) for up to 24 hours. Note, generally, if the executing officer (and those assisting) leave the premises and cease execution of the warrant for more than one hour, they cannot return and continue exercising their powers under the warrant without the occupier's consent (unless there is an emergency situation).
|D. EMPLOYEES: REGULATORS' RIGHTS TO QUESTION AND SEARCH PERSONAL PREMISES AND PROPERTY
||Can officers question employees?
||The ACCC may require a person at the premises being raided to answer questions to which the warrant relates. Only questions related to the warrant must be answered, not general questions about the business.
||If employees can be questioned, can you insist on the presence of a lawyer before employees are questioned?
||Generally, no. The ACCC may agree to wait until a lawyer is present before asking questions, but they are not prohibited from asking questions in the absence of a legal representative.
||If employees can be questioned, is there a right not to answer questions by claiming privilege against self-incrimination?
||Employees are not excused from answering questions or producing evidential material on the grounds of self-incrimination. Therefore employees must answer any relevant question, even if the answer may tend to incriminate them. However, any such answer is generally not admissible in evidence against the individual in criminal proceedings.
||Can the officers search employees' homes or access their personal mobile phones or laptops?
||Yes. A warrant can be issued for domestic premises as well as business premises. Things found at the premises may be seized and removed if they fall within the kind of evidential material identified in the search warrant.
|E. LEGAL PRIVILEGE: IS THERE A RIGHT TO WITHHOLD INFORMATION?
||What is covered by legal privilege?
||Legal professional privilege attaches to confidential communications between a legal adviser and client (or in some circumstances between one of those and a third party) if those communications were made for the dominant purpose of enabling the client to obtain, or the lawyer to give, legal advice, or litigation that is actually taking place or reasonably anticipated at the time the communication was made. Legal privilege can extend to communications with in-house counsel and foreign lawyers.
||Can privileged documents be withheld?
||Yes. The ACCC does not have the power to require the production of legally privileged documents. If the occupier believes that particular documents may be privileged, they should ask the executing officer to place the documents in a sealed envelope pending resolution of the privilege claim. Where the ACCC is searching or seizing large numbers of documents that may contain privileged communications, it should be made clear that privilege is not waived and a protocol put in place for dealing with any privilege claims.