The top 10 things to do if you're served with a search warrant by the ACCC and who should do them...

1.     [Most senior person in attendance, eg the manager] Review the search warrant, checking for the following info:

a.     the identified premises

b.     the time specified for the execution of the warrant

c.     the kind of evidence sought

d.     the alleged breaches of the Competition & Consumer Act

e.     who’s in charge (that is, the ACCC officer responsible for executing the warrant)

2.     [Preferably another person, eg receptionist] Take a copy of the warrant (in fact, take a few). Occasionally a warrant may be a telephone warrant, in which case write down the above details and ask an ACCC officer to verify them. Again, make several copies of this summary

3.     [Manager/receptionist] Check the credentials of those conducting the search and take the details of each person involved (probably easiest by photocopying their ID cards)

4.     [Manager] Ask the ACCC to wait while you call a lawyer.  They don’t have to say yes, so ask politely!  If they say no, you cannot obstruct their search. If they agree, choose an appropriate waiting room for them (one with no evidence that can be examined in your absence) and treat them in the same manner as a visiting client/customer

5.     [Manager] Call a lawyer – ideally one who is familiar with your business (regardless of their area of practice). Failing that, just get a lawyer who can help, preferably in person. If they can’t get to your premises quickly, keep them on the phone throughout the search process

6.     [Manager] Ask if you can send an all-staff email:

a.     advising of the warrant

b.     instructing staff to cooperate and not to destroy or hide documents, and 

c.     barring any external communications relating to the search. 

This is also a good time to call for assistance.  Ideally, you want at least three staff members present, including where possible a senior IT manager

7.     [Senior staff] Ensure a senior member of staff accompanies all ACCC officers throughout the search process.  Arm each staff member with a copy of the warrant. Note that the ACCC is likely to break its staff up into search teams of 2-3 people

8.     [Manager/senior staff] If you have privileged material onsite, pay close attention – the ACCC is NOT entitled to take such documents.  If you think a document is privileged (that is, it was prepared by or for your lawyers for the dominant purpose of giving legal advice), tell the ACCC.  If the ACCC still wishes to take it, don’t try to stop it but make specific note of the document and the officer with whom you’ve discussed it

9.     [Everyone] Cooperate with the search process, be polite and DO NOT obstruct the ACCC officers.  Cooperating includes answering factual questions honestly. That said, do not volunteer information – in other words, only answer what you have been asked

10.  [Manager/senior staff] Make sure you inspect all evidence which the ACCC seeks to remove from the premises and get a detailed receipt for that evidence

A search warrant entitles the ACCC to:

• enter the premises identified in the warrant
• search the premises for the kind of evidence specified in the warrant
• seize that evidence and make copies of it
• check to see whether the evidence is accessible (eg by opening documents on ACCC staff laptops)
• take photographs or make video recordings of the search process
• seize evidence that is unrelated to the warrant where it may be evidence of an indictable offence under specified legislation

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.