Antitrust Alert: Australia Competition Authorities Enforce Information Gathering Power
The Australian Competition and Consumer Commission (ACCC) has the authority to bring enforcement actions against cartels, agreements restraining competition, and abuse of dominance, as well as responsibilities relating to consumer protection, regulation (such as telecommunications),and the informal merger clearance regime. The ACCC employs a wide range of techniques to gather evidence, but possibly the most effective are its statutory powers under section 155 of the Competition and Consumer Act 2010. Others ACCC tools include voluntary information submissions and search and seizure powers.
Section 155 confers wide powers on the ACCC to obtain information, documents and evidence when investigating possible contraventions of the Competition Act and in connection with some of its adjudicative and other functions. These powers are similar to those of the Australian Securities and Investments Commission or the Australian Tax Office.
The statute does not provide any excuse for the recipient to refuse to provide the material, other than the legal professional privilege. Unlike most other countries, there is no general right to silence, nor can the party questioned decline to answer on the basis that the material may expose him to a pecuniary penalty or tend to incriminate him. The ACCC commonly seeks provision of material in a very short time frame, shorter than in a court discovery process.
The consequences for failure to comply can include fines and jail time. Failing to comply with section 155, including if a person knowingly gives false or misleading evidence in a section 155 examination, is a criminal offence. For individuals, penalties can be imposed including a fine of up to $3,400 or up to 12 months’ imprisonment.
ACCC proceedings against Michael Anthony Boyle
The ACCC recently announced it has begun criminal proceedings in the Federal Court in Brisbane against Mr. Michael Anthony Boyle for allegedly providing false or misleading evidence in the course of an ACCC investigation. This announcement is a timely reminder of the importance the ACCC places on its statutory investigatory powers and that the ACCC will, were individuals knowingly choose to provide misleading, incorrect or incomplete evidence, pursue the matter fully.
According to the ACCC's media release, in 2011 Mr. Boyle was issued a notice to provide evidence in relation to the ACCC’s investigations of allegations that into Sensaslim Australia Pty Ltd. and several of its officers engaged in misleading and deceptive conduct and made false representations relating to the business of Sensaslim. Mr. Boyle is alleged to have knowingly provided false or misleading evidence during an examination conducted pursuant to section 155. He faces the full array of possible penalties.
Section 155 precedents
The ACCC has previously pursued individuals who knowingly have provided false or misleading evidence to the ACCC.
NuEra. In 2008, in connection with the investigation of false and misleading representations in cancer cure claims and other unconscionable conduct, the ACCC issued section 155 Notices to the NuEra Group of Companies and these directors. The ACCC took criminal proceedings against NuEra Companies for repeatedly failing to respond to the section 155 Notices as well two directors for having aided, abetted, counseled or procured the commission of an offence. Having found that the NuEra Companies had failed to comply with the Notices, the Court imposed a fine of $6,000. The two directors were sentenced to 6 months and 2 months in imprison.
Neville. In 2007, Mr. John Patrick Neville was prosecuted for providing false and misleading evidence in two section 155 examinations. The ACCC had issued a Notice requiring Mr. Neville to attend an oral examination relating to an alleged arrangement among real estate agents in the Blue Mountains to put pressure on local publishers not to publish advertisements from other real estate agents of a flat fee commission. The ACCC instituted criminal proceedings against Mr. Neville for providing false and misleading information on two occasions when responding to questions by the ACCC in an examination and failing to retract those false and misleading statements. Ultimately, Mr. Neville pleaded guilty and was fined and sentenced to 200 hours of community service.
Challenges to section 155 notices. Other recipients of section 155 Notices have sought to challenge the ACCC’s use of this tool. These challenges have been unsuccessful.
Recipients of section 155 notices are reminded that the ACCC will take compliance with the notice most seriously. Responses must be frank and honest. The ACCC recognises the costs and burden on recipients, but balances this with the public need for the investigation to be undertaken by the ACCC and for the ACCC to be fully apprised of all relevant material. In this way recipients should heed this timely warning to treat notices with the utmost respect in the knowledge that the ACCC and the courts are likely to regard non-compliance most seriously. Recipients might also consider challenging the validity of the notice, but may be better advised to engage with the ACCC to secure a variation in the scope, timing or form of the notice rather than incurring costs in complete challenges.
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