Section 155
Power to obtain information, documents and evidence

Amended by Treasury Laws Amendment (Australian Consumer Law Review) Act 2018 (Act 132 of 2018)

At the end of paragraph 155(2)(b) add:

; or (v)  the Commission investigating or inquiring into the terms of a consumer contract or small business contract for the purposes of determining whether or not to make an application to the court under section 250 of the Australian Consumer Law.

Amended by Competition and Consumer Amendment (Competition Policy Reform) Act 2017 (Act 114 of 2017)

Subparagraph 155(2)(b)(iv)

Omit “93(3) or (3A) or 93AC(1) or (2)”, substitute “93(3), (3A) or (3B) or 93AC(1), (2) or (2A)”.

Subsection 155(1)

Omit all the words from and including “that constitutes” to and including “subsection 95AZM(6)”, substitute “referred to in subsection (2)”.

After subsection 155(1)

Insert:

(2) For the purposes of subsection (1), the matter must be a matter that:

(a) constitutes, or may constitute, a contravention of:

(i) this Act; or

(ii) Division 4A or 4B of Part 3.3 of the Radiocommunications Act 1992; or

(iii) any of the terms of an undertaking under section 87B of this Act or under section 218 of the Australian Consumer Law; or

(b) is relevant to:

(i) a designated communications matter (as defined by subsection (9) of this section); or

(ii) a designated water matter (as defined by subsection (9A) of this section); or

(iii) the making of a decision by the Commission under subsection 90(1) in relation to an application for a merger authorisation; or

(iv) the making of a decision by the Commission under subsection 91B(4), 91C(4), 93(3) or (3A) or 93AC(1) or (2).

After subsection 155(5A)

Insert:

(5B) Paragraph (5)(a) does not apply to the extent that:

(a) the notice relates to producing documents; and

(b) the person proves that, after a reasonable search, the person is not aware of the documents; and

(c) the person provides a written response to the notice, including a description of the scope and limitations of the search.

Note: A defendant bears a legal burden in relation to the matter in paragraph (5B)(b) (see section 13.4 of the Criminal Code).

(6) For the purposes of (but without limiting) paragraph (5B)(b), a determination of whether a search is reasonable may take into account the following:

(a) the nature and complexity of the matter to which the notice relates;

(b) the number of documents involved;

(c) the ease and cost of retrieving a document relative to the resources of the person who was given the notice;

(d) any other relevant matter.

Subsection 155(6A)

Omit “a fine not exceeding 20 penalty units or imprisonment for 12 months”, substitute “imprisonment for 2 years or a fine not exceeding 100 penalty units”.

After subsection 155(8)

Insert:

(8A) If a person refuses or fails to comply with a notice under this
section, a court may, on application by the Commission, make an
order directing the person to comply with the notice.

 

Act 23 of 2011 Telecommunications Legislation Amendment (National Broadband Network Measures - Access Arrangements) Act 2011

Section 89 of the Act provided that the following be inserted after paragraph 155(9)(b)

"the National Broadband Network Companies Act 2011; or"

 

Act 59 of 2009 Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 (Act 59 of 2009)

43  Subsection 155(7)

After “incriminate the person”, insert “or expose the person to a penalty”.

44  Subsection 155(7)

Omit “by a person” (wherever occurring), substitute “by an individual”.

45  Subsection 155(7)

Omit “, or any document produced in pursuance of such a notice,”.

46  Subsection 155(7)

Omit “against the person”, substitute “against the individual in any criminal proceedings, other than”.

47  Paragraphs 155(7)(a) and (b)

Repeal the paragraphs, substitute:

(a)  proceedings for an offence against this section; or

(b)  proceedings for an offence against section 137.1, 137.2 or 149.1 of the Criminal Code that relates to this section.

 

Act 139 of 2008 Water Amendment Act 2008 (Act 139 of 2008)

 

Act 159 of 2007 Trade Practices Legislation Amendment Act 2007

12  Subsection 155(1)

Omit "the Deputy Chairperson", substitute "a Deputy Chairperson".

 

Act 138 of 2007 Water (Consequential Amendments) Act 2007 (Act 138 of 2007)

 

Act 68 of 2007 Broadcasting Legislation Amendment (Digital Radio) Act 2007 (Act 68 of 2007)

 

Act 131 of 2006 Trade Practices Legislation Amendment Act (No 1) 2006
This Act introduced the first set of Dawson reforms - including the following:

5  Subsection 155(1)

After “under subsection”, insert “91B(4), 91C(4),”.

5A  Subsection 155(1)

Before “, a member of the Commission may”, insert “or 95AS(7) or the making of an application under subsection 95AZM(6)”.

6  Paragraph 155(1)(c)

After “Commission”, insert “, or before a member of the staff assisting the Commission who is an SES employee or an acting SES employee and who is specified in the notice,”.

7  Subsection 155(2)

Repeal the subsection.

8  Subsection 155(2A)

Omit “or an authorisation under subsection (2)”.

9  Subsection 155(3)

Repeal the subsection, substitute:

(3)  If a notice under subsection (1) requires a person to appear before the Commission to give evidence, the Commission may require the evidence to be given on oath or affirmation. For that purpose, any member of the Commission may administer an oath or affirmation.

(3A)  If a notice under subsection (1) requires a person to appear before a member of the staff assisting the Commission to give evidence, the staff member may require the evidence to be given on oath or affirmation and may administer an oath or affirmation.

10  Subsection 155(4)

Repeal the subsection.

11  Paragraph 155(5)(b)

Omit “or” (last occurring).

12  Paragraph 155(5)(c)

Repeal the paragraph.

13  Subsection 155(6)

Repeal the subsection.

14  Subsection 155(6A)

Omit “or (6)”.

15  Subsection 155(7)

Omit “or permitting the inspection of”.

16  Subsection 155(7)

Omit “or made available to an authorized officer for inspection”.

17  Paragraphs 155(7A)(b) and (c)

Omit “or permit inspection of”.

18  After subsection 155(7A)

Insert:

(7B)  This section does not require a person to produce a document that would disclose information that is the subject of legal professional privilege.

Note: A defendant bears an evidential burden in relation to the matter in this subsection (see subsection 13.3(3) of the Criminal Code ).

19  At the end of section 155

Add:

(10)  In this section:

"legal professional privilege" includes privilege under Division 1 of Part 3.10 of the Evidence Act 1995.

 

Act 134 of 2003 Trade Practices Legislation Amendment Act 2003

41 Paragraph 155(2A)(a)

Omit "subsection 32(1) of the Prices Surveillance Act 1983 ", substitute "subsection 95ZK(1) or (2)".

42 Paragraph 155(2A)(b)

Omit "the member presiding at an inquiry under that Act", substitute "the person presiding at an inquiry under Part VIIA".

43 Paragraph 155(2A)(c)

Omit "subsection 34(2) of that Act", substitute "subsection 95S(3)".

 

Act 128 of 2002 Trade Practices Amendment Act (No 1) 2002

 

Act 146 of 2001 Treasury Legislation Amendment (Application of Criminal Code) Act (No 2) 2001

 

Act 52 of 1999 Telecommunications Legislation Amendment Act 1999

 

Act 58 of 1997 Trade Practices Amendment (Telecommunications) Act 1997

 

Act 88 of 1995 Competition Policy Reform Act 1995

27. Section 155 of the Principal Act is amended by inserting in subsection (1) "or (3A)" after "93(3)".

70. Section 155 of the Principal Act is amended:

(a) by omitting from subsections (1) and (2) "Where the Commission, the Chairman or the Deputy Chairman" and substituting "Subject to subsection (2A), if the Commission, the Chairperson or the Deputy Chairperson";

(b) by inserting after subsection (2):

"(2A) A member of the Commission may not give a notice under subsection (1) or an authorisation under subsection (2) merely because:

(a) a person has refused or failed to comply with a notice under subsection 32(1) of the Prices Surveillance Act 1983 on the ground that complying with the notice would tend to incriminate the person, or to expose the person to a penalty; or

(b) a person has refused or failed to answer a question that the person was required to answer by the member presiding at an inquiry under that Act, on the ground that the answer would tend to incriminate the person, or to expose the person to a penalty; or

(c) a person has refused or failed to produce a document referred to in a summons under subsection 34(2) of that Act, on the ground that production of the document would tend to incriminate the person, or to expose the person to a penalty.";

(c) by inserting after subsection (7):

"(7A) This section does not require a person:

(a) to give information or evidence that would disclose the contents of a document prepared for the purposes of a meeting of the Cabinet of a State or Territory; or

(b) to produce or permit inspection of a document prepared for the purposes of a meeting of the Cabinet of a State or Territory; or

(c) to give information or evidence, or to produce or permit inspection of a document, that would disclose the deliberations of the Cabinet of a State or Territory.".

 

Act 70 of 1990 Trade Practices (Misuse of Trans-Tasman Market Power) Act 1990

 

Act 17 of 1986 Trade Practices Revision Act 1986

 

Act 81 of 1977 Trade Practices Amendment Act 1977

68. Section 155 of the Principal Act is amended by inserting in sub-section (1), after the word ''Act,'', the words ''or is relevant to the making of a decision by the Commission under sub-section 93 (3),''.

Obeid v Australian Competition and Consumer Commission [2014] FCA 839 (8 August 2014)
Challenge to validity of s 155 notice unsuccessful

Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49; 213 CLR 543; 192 ALR 561; 77 ALJR 40 (7 November 2002)
Allowed appeal from unanimous Full Federal Court decision (ACCC v The Daniels Corporation International Pty Ltd [2001] FCA 244; [2001] ATPR 41-808). High Court held that parties were not required to give to the ACCC, as part of s 155 notice, documents protected by Legal Professional Privilege.

Seven Network Ltd v ACCC [2004] FCAFC 267; (2004) 140 FCR 170
Section 155

Tamberlin J:

'... s 155 of the Trade Practices Act 1974 (Cth) (‘TP Act’) arms the Australian Competition and Consumer Commission (‘ACCC’) and its Chairman with strong investigative powers. '

Justices Sackville and Emmett

49 The authorities have established a number of propositions concerning the interpretation of s 155(1) of the TP Act. They include the following:

(i) In a context where refusal or failure to comply with a s 155 notice is punishable by imprisonment or fine, the notice must:

(a) convey with reasonable clarity to the recipient the information that must be furnished; and

(b) disclose that the ACCC is entitled to require the recipient to furnish the specified information: Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; (1982) 57 FLR 368, at 374, per curiam.

(ii) The second of these requirements will not be satisfied unless it appears from the notice that the information sought is information ‘relating’ to one or more ‘matters’ of a kind described in s 155(1): Pyneboard v TPC, at 375; SA Brewing v Baxt, at 369-370; Bannerman v Mildura Fruit Juices Pty Ltd [1984] FCA 156; (1984) 2 FCR 581, at 584, per Bowen CJ and Neaves J. However, the question whether a notice discloses the necessary ‘relatedness’ is not to be approached in an ‘over-technical or hypercritical way’: Pyneboard v TPC, at 376. Moreover, the ‘relatedness’ is to a proper inquiry into the suspected offences: Panelboard Pty Ltd v Trade Practices Commission [1981] FCA 98; (1981) 59 FLR 395, at 407, per Fox J.

(iii) Section 155(1) does not require the Chairperson of the ACCC to have ‘reason to believe’ that a specified matter constitutes or may constitute a contravention of the TP Act. The Chairperson must, however, have reason to believe that the relevant person is capable of furnishing information relating to the matter specified in the notice: WA Pines v Bannerman, at 179, per Brennan J (with whom Bowen CJ agreed); TNT Australia Pty Ltd v Fels [1992] ATPR 41-190, at 40,598-40,599, per Gummow J. It follows that the Chairperson or other officer must believe that the person to whom the notice is directed is capable of furnishing information relating to the facts known or suspected: WA Pines v Bannerman, at 180. In addition, there must be facts in existence which are sufficient to induce that belief in a reasonable person: George v Rockett, at 112.

(iv) The word ‘matter’ in s 155(1) is to be construed in its ordinary sense of an affair or thing: Melbourne Home of Ford Pty Ltd v Trade Practices Commission [1979] FCA 15; (1979) 36 FLR 450, at 474, per Franki and Northrop JJ; SA Brewing v Baxt, at 369. It refers to a body of facts which constitutes or may constitute a contravention of the TP Act. Whether or not the relevant body of facts constitutes a contravention is a matter of law and does not turn on the perception or knowledge of the ACCC or its officers: WA Pines v Bannerman, at 179.

(v) When s 155(1) speaks of a matter which may constitute a contravention, it refers to a body of facts not fully known and which may, when fully known, reveal themselves as constituting a contravention: WA Pines v Bannerman, at 179. The words ‘may constitute’ enable a court to judge from the material in the notice whether, if other facts which may or may not have occurred come to light, the whole body of facts would constitute a contravention: SA Brewing v Baxt, at 370. It is not necessary for the court to determine whether a contravention has occurred; but equally it will not ‘idly speculate’ or ‘draw on improbable circumstances’ to uphold a Notice: SA Brewing v Baxt, at 370. An alternative formulation is that the court can take account of facts which may ‘reasonably be suspected’ to have occurred: WA Pines v Bannerman, at 179.

(vi) Where the matter referred to in the notice, after allowing for undiscovered facts, is incapable of amounting to a contravention, the issue of the notice is not a valid exercise of the power conferred by s 155(1): SA Brewing v Baxt, at 371-372.

(vii) In view of the principle that a court should not adopt an ‘over-technical or hypercritical approach’ to the construction of a notice, there is no requirement that the notice ‘plead’ all the facts necessary to constitute a contravention or possible contravention of the TP Act: SA Brewing v Baxt, at 370.

(viii) Information which tends to negative a suspected contravention or liability to conviction or which tends to exculpate a person suspected to be a party to a contravention, is within the ambit of s 155(1). It follows that an inquiry under s 155 may relate to a defence or possible defence available to the suspected person: WA Pines v Bannerman, at 180.

WA Pines Pty Ltd v Bannerman [1980] FCA 79; (1980) 41 FLR 175
Many of these passages reproduced with approval in the Seven Network case.

Lockhart J (at 188):

"The Commission [ACCC] is given the powers conferred by s 155(1) because Parliament has entrusted to it the task of investigating contraventions or possible contraventions of the Act. Armed with the powers of s 155(1) the Commission will be able to determine whether prosecutions would be likely to succeed or fail. The Commission is part of the Commonwealth’s law enforcement machinery. It is not for it to determine contravention or no; that is for the courts. The belief of the Commission whether there has been or may be a contravention is not necessary for the valid exercise of the powers of the Commission; but it must have a well-founded belief that the recipient of the notice is capable of providing information, producing documents or giving evidence that may assist in determining whether a contravention has occurred or may occur."

"The Commission may seek to exercise its powers under s 155 to obtain information or documents that may be exculpatory rather than inculpatory. Surely this must be a proper exercise of the power conferred by s 155; in which case plainly it is unnecessary for the Commission to have the belief that there has been or may be a contravention of the Act."

Brennan J (at 180)

"It is not necessary that he [the Chairman] should believe that the information documents or evidence will establish or tend to establish a contravention, but merely that they relate to the matter. Information documents and evidence which tend to negative a suspected contravention or liability to conviction or which tend to exculpate a person suspected to be a party to a contravention or an offence are as much within the ambit of s 155(1) as information documents or evidence which tend in the other direction. Thus, an inquiry under s 155 may relate to a defence or possible defence under s 85."

 

The Dawson Review, which followed the High Court decision in the Daniels case, recommended (recommendation 13.5) that the Act should be amended to make clear that s 155 does not require production of documents subject to legal professional privilege. The Act was subsequently amended.

ACCC Guidelines on s 155 (October 2018)

Articles

Nicolas Taylor and Elisabetta Santi, 'Corporate executives are entitled to human rights in competition law investigations' (2014) 21 CCLJ 264

Ian Wylie, 'When too much power is barely enough – section 155 of the Trade Practices Act 1974 and noblesse oblige' (2009) 16 Competition and Consumer Law Journal 314

Roger Featherston, "Checks and Balances on the ACCC's Powers" (2003) 26 University of New South Wales Law Journal 296

(p 46): 'The largest body of complaints to the ACCC in respect of s 155 notices ... would be in relation to the scope of notices demanding documents and the time allowed to fulfil the demands.'

Hank Spier, 'Section 155 of the Trade Practices Act 1974: Some Practical Issues - A Trade Practices Commission Perspective' (1994) 2 Trade Practices Law Journal 116

Notes/updates

Jones Day, 'Highlighting Changes of Interest in Competition and Consumer Law: Changes to the ACCC's Power to Obtain Information' (ANZ Competition and Consumer Law Update, February 2018)

Kathryn Edghill, Cicely Sylow, 'Are you a data hungry business? Here's what you need to know about the ACCC's newly improved Section 155 powers' (Bird&Bird, 16 February 2018)

Mihkel Wilding and Douglas Thompson, 'Bidding for Mt Penny: s. 155 notices and alleged breaches of competition laws in bidding processes' (Clayton Utz Insights, 19 March 2015 )

Legal professional privilege

Alex Bruce, 'The Trade Practices Act 1974 (Cth) and the Demise of Legal Professional Privilege' (2002) 30 Federal Law Review 373
This comment preceded the High Court decision which upheld the appeal in the Daniels case. It also preceded changes to the provision made as a result of the Dawson Review.

Suzanne B McNicol, 'Australian Competition and Consumer Commission v The Daniels Corporation International Pty Ltd and Another' (2002) 24 Sydney Law Review 281