Australia’s consumer watchdog, the ACCC, have certain legal powers that allow them to enforce competition and consumer laws, including the collection of information from individuals and business owners. Every business owner should know their obligations under the Competition and Consumer Act 2010 (the Act), but also in responding to any ACCC notifications and consequences for non-compliance. Below, we set out the ACCC’s legal powers to gather information and what this means for business owners – noting  that the ACCC is responsible for enforcing not only the Australian Consumer Law but also the Franchising Code of Conduct.

Extending Voluntary Requests

The ACCC can make voluntary requests for further information to individuals or small businesses under section 155. If you receive a notice, the ACCC may have sent this to you as they have a reason to believe that you can assist in their investigation. In doing so, the ACCC will try to minimise the burden of providing further information.

Information Obligations

If you were to receive a notice from the ACCC, it would include:

  • Further details as to the reason for the request;
  • An outline of the matter under investigation; and
  • A clear request as to the information required and the timeline for providing a response.

At times, the ACCC’s legal powers may also require you to attend an oral examination which will involve you appearing at a certain place and time to provide evidence together with any requested documentation. If you receive a notice under the ACCC, it is ideal to get the assistance of a lawyer who can assist with providing you guidance or advice on the possible implications.

Complying with ACCC Requests

As a general rule, the ACCC’s legal powers obligate you to comply with requests for information. This means conducting searches and producing material when requested and within the due date. Any response to the ACCC must be full and honest. If you have received a request from the ACCC and operate a private company, a person within the company with decision-making authority must provide the response, i.e., a company secretary or director. The consequences of not complying with the ACCC’s requests may include fines and in certain situations imprisonment. For example, the provision of false or misleading information may be considered a criminal offence.

Extensions

As you are provided with a specific time frame to reply, and it may take a reasonable amount of time to search and collect information, ensuring that you attend to the ACCC’s request promptly will help you to meet any appropriate deadlines. In certain circumstances, the ACCC may allow an extension – both to produce the documents and to vary the time to respond – but you must apply in writing.

Use of Information

The ACCC will use the information you have provided to assist with making decisions relating to investigations and potential contraventions of the Act. It may also be used in legal proceedings that arise from the investigation. The information you have provided will not be able to be restricted in its use, meaning the ACCC has discretion in the way that it will use the information (e.g. to commence legal proceedings). The ACCC is nevertheless obliged to comply with any requests relating to keeping documents confidential. However, the information must be clearly marked confidential and must not be information that is generally publicly available.

Key Takeaways

A request for information from the ACCC is not a request that should be taken lightly, especially since the information you provide can be used broadly for the purposes of investigation, and in some cases for legal proceedings. Your obligations to respond in time and to provide true and honest information should remain a priority. Understanding the possible legal implications that can arise following the provision of legal information will help protect you in the event legal proceedings commence. If you have further questions regarding ACCC legal requests, get in touch with our specialist consumer lawyers on 1300 544 755.

Kristine Biason

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