ACCC section 155 compulsory notices under the Competition and Consumer Act

Section 155 — what it does

Section 155 of the Competition and Consumer Act 2010 (Cth) provides the Australian Competition and Consumer Commission (ACCC) with powers to compel individuals and organisations to provide information. These powers allow the ACCC to gather information relevant to its investigations.

The ACCC may issue three types of notices under section 155. These include a notice to furnish information, a notice to produce documents, and a notice to attend before the Commission and give evidence on oath.

Notices are issued when the ACCC has reason to believe a person is capable of furnishing information, producing documents or giving evidence relating to a contravention.

Scope and timing

Section 155 notices are a tool used by the Australian Competition and Consumer Commission (ACCC) to investigate suspected breaches of several parts of the Competition and Consumer Act. These parts include IV, IVB, IVBA, IVD, V, VB and VC. These parts cover areas such as CCA Part IV — cartels and misuse of market power and consumer protection.

The ACCC may issue these notices to both natural persons and corporations. Recipients of a section 155 notice are required to comply with the instructions outlined within the notice, and must do so within the timeframe specified. This timeframe is typically between 21 and 28 days for the provision of documents.

Requests for extensions to the compliance timeframe can be made to the ACCC, and whether an extension is granted is at the ACCC's discretion.

Offence for non-compliance

Refusal or failure to comply with a section 155 notice, without a reasonable excuse, constitutes an offence under section 155(5) of the Competition and Consumer Act. This applies whether the non-compliance is by an individual or a corporation.

The penalties for this offence were substantially increased by the Treasury Laws Amendment (2018 Measures No. 3) Act 2018. Individuals found to be in breach may face a maximum penalty of 20 penalty units, imprisonment for 12 months, or a combination of both.

For corporations, the maximum penalty is 100 penalty units.

Self-incrimination and privilege

The Competition and Consumer Act allows individuals receiving a section 155 notice to assert the privilege against self-incrimination. However, section 155(7) removes this privilege, meaning it is not available to natural persons.

A use immunity applies where the privilege is asserted. This means any information provided during the examination cannot be used against the individual in criminal proceedings, except where the individual asserts the privilege itself – in which case, the information *can* be used.

Legal professional privilege may be claimed in relation to documents produced during a compulsory examination. Individuals typically attend these examinations with legal representation.