In this practice area
Acting for businesses and individuals when the ACCC investigates competition or consumer law conduct, issues section 155 notices, or commences civil penalty or criminal cartel proceedings.
What an ACCC investigation involves
The Australian Competition and Consumer Commission enforces the Competition and Consumer Act 2010 (Cth), including Part IV (restrictive trade practices) and the Australian Consumer Law in Schedule 2. Investigations commonly concern cartel conduct, misuse of market power, exclusive dealing, resale price maintenance, misleading or deceptive conduct, false or misleading representations, unfair contract terms, product safety and consumer guarantees.
An investigation may be triggered by a complaint from a competitor or customer, an immunity applicant under the ACCC's cartel immunity policy, a market study or the ACCC's own enforcement priorities.
The legal framework
Section 155 of the CCA allows the ACCC to require a person to furnish information, produce documents or appear to give evidence where it has reason to believe the person can assist with a matter that may constitute a contravention. Non-compliance, and giving false or misleading information, are offences. A person is not excused from complying on the ground of self-incrimination, although for individuals the information is generally not admissible in criminal proceedings other than for specified offences. The Act preserves legal professional privilege.
Civil penalties for competition and most Australian Consumer Law contraventions by companies are now the greater of $50 million, three times the benefit obtained, or 30 per cent of adjusted turnover during the breach period where the benefit cannot be determined. Cartel offences are criminal and are prosecuted by the Commonwealth Director of Public Prosecutions, with individuals exposed to imprisonment. The ACCC may also accept court-enforceable undertakings under section 87B, issue infringement notices and seek injunctions, corrective advertising and disqualification orders.
How these matters run
A section 155 notice sets a return date and often calls for large volumes of electronic records. Early work involves understanding the scope, negotiating reasonable variations with ACCC staff, and running a defensible collection and privilege review. Where a notice is too broad or uncertain, its validity can be questioned.
The ACCC may examine witnesses, seek further information, and later set out its concerns before deciding whether to litigate. Proceedings are brought in the Federal Court. Many matters resolve by agreed facts and joint penalty submissions, but the court must still be satisfied the proposed penalty is appropriate. Contested matters run to trial.
How GopherWood Lawyers acts
We assess the conduct in issue, the client's exposure and whether leniency, cooperation or a contested position best protects the business. We manage section 155 compliance, prepare and attend with witnesses, and deal with ACCC investigators directly.
If proceedings follow, we defend them in the Federal Court, or negotiate undertakings or agreed outcomes where that is commercially sound. We also act for businesses harmed by anti-competitive or misleading conduct who wish to bring their own claims.