I’m asked by clients surprisingly often whether they have to respond to ACCC requests for information. These aren’t dodgy folk; rather they’re private and/or concerned about what will happen to their information. Ultimately, there are several contexts in which the ACCC might ask you questions, which means whether (and how) you respond really depends.

Voluntary requests

The key issue here is why is the ACCC asking?

For example, if the ACCC is investigating your conduct, then ultimately they can compel the information (see below). As such, it’s better to hand it over without escalating the issue. Here, cooperation is key. Alternatively, the ACCC may be asking in order to investigate someone (or something) else. This might arise in the context of mergers (or various statutory processes), in which case many parties choose not to respond. If it’s an enforcement investigation, again the ACCC may be able to force your hand. If you really don’t want to respond, it may be best to seek advice about how to manage your engagement. 

Finally, the ACCC may be asking because you’ve initiated a process (for example, a merger). Where this happens, it is always an option to decline to cooperate, but this strategy may well come at the cost of the process concerned. If you really don’t want to answer the ACCC’s questions, then you have to consider (for example) how much you want that merger clearance you’ve sought.

I have had some clients who operate in the form of very closely-held private companies – they’ve deliberately structured their business (including finances) in a way that means they don’t have to let people inspect their underwear. In such businesses, privacy may be worth more than a given project. This approach might be hard for some to understand, but that doesn’t render it invalid. That said, it can mean some fancy tapdancing with the ACCC which typically assumes that squirrely behaviour is dodgy.

Compulsory demands

The ACCC has several bases upon which it can require you to provide information. The best known of these are s155 notices and search warrants. If you’re dealing with a search warrant, you don’t have time to read all this - go here instead. 

In the case of s155 notices, you will have time to seek advice about your rights and responsibilities. The long & short of it is: there are limited bases upon which to protest. While you may be able to confine the scope of the notice, you’re almost certainly going to have to comply. I strongly advise s155 recipients to seek qualified legal advice as soon as possible (certainly within a day or two of receiving the notice). Putting together a response almost always takes longer than you expect.

Before calling your lawyer, try to ascertain the following (it’s all on the first couple of pages of the notice):

• What sort of notice is it – (a) [furnishing of information]; (b) [production of documents]; and/or (c) [to appear for an examination]?
• What are “the matters that constitute” (that is, what is the essence of the alleged conduct) and when did it -allegedly- occur?
• What are the relevant provisions which may have been contravened? and
• What is the return date (that is, the date by which you have to comply)?

How will the ACCC use my info (whether acquired compulsorily or voluntarily)?

The ACCC can do a lot of things with your information, which is why people can be a little leery. You should assume that it will be kept on file, and may be looked at again even in relation to a different matter. It can definitely be used against you, now or at a later point.

Do I have to answer everything I’m asked?

This question presumes that we’re in s155 territory (hence the use of “have to”). In short, no. The ACCC is not entitled to violate legal professional privilege, and the privilege against self-incrimination also applies. That said, this is tricky territory – never try to play these cards without proper legal advice. If you’re in a voluntary situation, then the answer is definitely no, although that might itself provoke a s155 notice (see above).

How does confidentiality work?

If you’re providing a voluntary statement, you can ask for information to be treated confidentially. Where the ACCC considers this is appropriate, it will look after your info (although it did have a very embarrassing slip-up in 2019).

That said, all information may be used internally within the ACCC (including down the track) and may be provided to its advisers (e.g. lawyers and consultants). In addition, certain information may be released to other government bodies under specific provisions of the CCA.

Note that where you are under a confidentiality obligation to a third party (for example, a former employer), you may not be able to provide the ACCC with information voluntarily. In such circumstances, the ACCC may serve you with a “friendly” s155 notice.

Ultimately, the ACCC tends to be pragmatic: in game theory terms, it is a repeat player. While it is (almost always) entitled to play hardball in virtually any situation – compelling information to be produced and then being able to treat it with relative freedom – it understands that sensitive information has to be treated in a way that will encourage others to cooperate in future. As such, delicate matters are typically managed with appropriate sensitivity. 

Above all else, to the [ACCC] be true…

Whatever you do – whether engaged in a voluntary or compulsory process – don’t be tricksy in your dealings with the ACCC. It’s not going to end well, and may even result in criminal charges. As Yul Brynner would say, “don’t [lie], whatever you do, just don’t [lie]”. It’s best not to smoke either. 

PS: in case you wish to be reminded of the gorgeousness of the Bare Naked Ladies’ Call & Answer, here’s a link: as Molly Meldrum would say, do yourself a favour… 

Disclaimer

The information on this page is intended to be a general guide only. It is not intended to constitute professional or legal advice. While all efforts are made to ensure information is accurate as at the date it is published, there is no guarantee that it will have been updated to reflect subsequent developments.