COMPETITION AND CONSUMER ACT 2010 - SECT 155 Power to obtain information, documents and evidence
COMPETITION AND CONSUMER ACT 2010 - SECT 155
Power to obtain information, documents and evidence(1) Subject to subsection (2A), if the Commission, the Chairperson or a Deputy Chairperson has reason to believe that a person is capable of furnishing information, producing documents or giving evidence relating to a matter referred to in subsection (2), a member of the Commission may, by notice in writing served on that person (whether in Australia or outside Australia), require that person:
(a) to furnish to the Commission, by writing signed by that person or, in the case of a body corporate, by a competent officer of the body corporate, within the time and in the manner specified in the notice, any such information;
(b) to produce to the Commission, or to a person specified in the notice acting on its behalf, in accordance with the notice, any such documents; or
(c) to appear before the Commission, or before an associate member of the Commission who is an AER member and who is specified in the notice, 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, at a time and place specified in the notice to give any such evidence, either orally or in writing, and produce any such documents.
(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 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
(iiia) a gas market instrument; or
(iv) the consumer data rules; or
(i) a designated communications matter (as defined by subsection (9) of this section); or
(iaa) a gas market instrument matter (as defined by subsection (9AAA) of this section); or
(ia) a designated consumer data right matter (as defined by subsection (9AA) of this section); or
(ib) a designated digital platform matter (as defined by subsection (9AB) 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), (3A) or (3B) or 93AC(1), (2) or (2A); 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; or
(vi) a contracting order (within the meaning of Part XICA); or
(vii) a divestiture order (within the meaning of Part XICA).
(2AA) A member of the Commission may vary the time specified in a notice under subsection (1) within which the information must be furnished, or the documents produced, or at which the person is required to appear before the Commission or the member of the staff assisting the Commission who is specified in the notice.
(2AB) Subsection (2AA) does not affect any operation that subsection 33(3) of the Acts Interpretation Act 1901 has in relation to a notice under subsection (1).
(2A) A member of the Commission may not give a notice under subsection (1) merely because:
(a) a person has refused or failed to comply with a notice under subsection 95ZK(1) or (2) 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 person presiding at an inquiry under Part VIIA, 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 95S(3), on the ground that production of the document would tend to incriminate the person, or to expose the person to a penalty.
(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.
(4) A member of the Commission may exercise, or continue to exercise, a power under subsection (1) in relation to a matter referred to in that subsection until:
(a) the Commission commences proceedings in relation to the matter (other than proceedings for an injunction, whether interim or final); or
(b) the close of pleadings in relation to an application by the Commission for a final injunction in relation to the matter.
(a) refuse or fail to comply with a notice under this section;
(b) in purported compliance with such a notice, knowingly furnish information or give evidence that is false or misleading.
(5A) Paragraph (5)(a) does not apply to the extent that the person is not capable of complying with the notice.
Note: A defendant bears an evidential burden in relation to the matters in subsection (5A), see subsection 13.3(3) of the Criminal Code .
(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.
(6A) A person who contravenes subsection (5) is guilty of an offence punishable on conviction by imprisonment for 2 years or a fine not exceeding 100 penalty units.
Note 1: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
Note 2: Part IA of the Crimes Act 1914 contains provisions dealing with penalties.
(7) A person is not excused from furnishing information or producing a document in pursuance of this section on the ground that the information or document may tend to incriminate the person or expose the person to a penalty, but the answer by an individual to any question asked in a notice under this section or the furnishing by an individual of any information in pursuance of such a notice is not admissible in evidence against the individual in any criminal proceedings, other than:
(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.
(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 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 a document, that would disclose the deliberations of the Cabinet of a State or Territory.
Note: A defendant bears an evidential burden in relation to the matters in subsection (7A), see subsection 13.3(3) of the Criminal Code .
(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 ).
(8) Nothing in this section implies that notices may not be served under this section and section 155A in relation to the same conduct.
(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.
(8B) A member of the Commission may, in writing, delegate the member's powers under subsection (2AA) to a member of the staff of the Commission who is an SES employee or an acting SES employee.
Note 1: Section 2B of the Acts Interpretation Act 1901 contains the definitions of SES employee and acting SES employee .
Note 2: Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.
(8C) In performing a function, or exercising a power, under a delegation, the delegate must comply with any directions of the member.
(9) A reference in this section to a designated communications matter is a reference to the performance of a function, or the exercise of a power, conferred on the Commission by or under:
(a) the Telecommunications Act 1997 ; or
(b) the Telecommunications (Consumer Protection and Service Standards) Act 1999 ; or
(ba) the National Broadband Network Companies Act 2011 ; or
(c) Part XIB or XIC of this Act; or
(d) Division 4B of Part 3.3 of the Radiocommunications Act 1992 .
(9AAA) A reference in this section to a gas market instrument matter is a reference to the performance of a function, or the exercise of a power, conferred on the Commission by or under:
(b) regulations made under this Act for the purposes of that Part (including a gas market code); or
(c) a gas market emergency price order.
(9AA) A reference in this section to a designated consumer data right matter is a reference to the performance of a function, or the exercise of a power, conferred on the Commission by or under:
(a) Part IVD (other than Division 5); or
(b) regulations made under this Act for the purposes of that Part; or
(c) the consumer data rules.
(9AB) A reference in this section to a designated digital platform matter is a reference to the performance of a function, or the exercise of a power, conferred on the Commission by or under:
(b) regulations made under this Act for the purposes of that Part.
(9A) A reference in this section to a designated water matter is a reference to the performance of a function, or the exercise of a power, conferred on the Commission by or under:
(a) Part 4 or 4A of the Water Act 2007 ; or
(b) regulations made under that Act for the purposes of Part 4 of that Act; or
(c) water charge rules, or water market rules, made under Part 4 of that Act.
"legal professional privilege" includes privilege under Division 1 of
Part 3.10 of the Evidence Act 1995 .