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Five things you need to know about... dealing with the ACCC on a voluntary basis

A ‘dawn raid’ is a well-recognised, often public example of the ACCC’s formal enforcement powers. However the ACCC may also conduct investigations on a more informal, voluntary basis. This informal approach is sometimes preferred by the ACCC for being less intrusive, faster and more flexible. For this reason, many businesses may experience a voluntary request for information rather than a compulsory notice and should be aware of the parameters when co-operating with the ACCC on this basis.

In all dealings with the ACCC, any decision to co-operate with the regulator’s investigations needs to be balanced with the desire to protect the business’ interests, particularly the preservation of confidentiality in privileged or commercially sensitive information.

What are your rights and obligations?

Unlike a section 155 notice or a search and seizure warrant, which are governed by the relevant sections of the TPA, the obligations and rights of each party during ACCC informal information requests are less clear cut. The ACCC’s website contains an Information Policy (Information Policy) which provides some guidelines as to the collection, use and disclosure of information by the ACCC.

Co-operation

Co-operating with the ACCC’s enquiries can lead to a speedier and more cost effective resolution.

Failure to provide adequate information from the outset can be misleading and may result in the Commission exercising its formal powers under section 155 of the TPA, particularly if it believes a party is still capable of furnishing information, producing documents or giving evidence relating to a potential contravention of the TPA.

The ACCC may also revert to its statutory powers where a party seeks to attach conditions to the provision of information that would constrain the ACCC in the exercise of its functions.

Quick tips:

  • Do not mislead the ACCC with false information or ‘part truths’ - paint the complete picture and provide full and frank disclosure of all relevant information you have at hand
  • Do not provide the information subject to inflexible conditions which might hamper the ACCC’s investigations

Consider relevance of requested information

Businesses need to question the relevance of the information requested in the context of the ACCC’s investigation. They should consider what the ACCC is really looking for and what may be driving their requests. Target your information to the specific complaint contained in the information request.

Commercial confidentiality

Parties should be aware of how the ACCC deals with commercially sensitive or confidential information before voluntarily providing the regulator with any material. A lack of foresight into what may happen to commercially sensitive or confidential information may result in parties’ inadvertently disclosing information that may have a substantial adverse effect of the business.

The Information Policy sets out the ACCC’s policies in relation to the treatment of confidential information. Whilst the ACCC is committed to treating confidential information responsibly and in accordance with the law, the Commission may be legally required to produce confidential information down the track, including providing information to third parties without prior notification and consultation.

Quick tips for confidential information:

  • clearly identify the part of the information that is confidential (a blanket claim over the whole document/ suit of information should not be made unless the entirety is truly believed to be confidential)
  • the information must be genuinely confidential and not publically available
  • mark each document ‘confidential’ on the relevant sections to reduce the risk of inadvertent disclosure
  • provide reasons in support of all confidentiality claims.

Legal professional privilege

Parties should be mindful that information that would otherwise be privileged may be waived in circumstances where the parties voluntarily disclose the privileged communication to a third party, such as the ACCC, particularly where the privileged communication is voluntarily disclosed to the ACCC on a non-confidential basis. For further information on legal professional privilege can be found here.

​Who does this affect?
All corporations seeking to undertake mergers or make acquisitions in Australia.

​What do you need to do?
These corporations should speak to one of our competition experts to consider whether a failing firm argument would be relevant to merger assessment.

Author(s)

  • Leisha Marasinghe - Solicitor | Email
 

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