Received an ACCC Notice? Immediate Steps Australian Directors Must Take

Key Takeaways

• An ACCC notice should be treated as serious and time sensitive from the moment it arrives.
• A compulsory notice to produce information or documents, commonly known as a section 155 notice, carries legal obligations and consequences for non-compliance.
• Preserve all relevant documents immediately and avoid altering or deleting anything.
• Get legal advice before responding so privilege and your rights are protected.
• Meeting the stated deadline, or seeking an extension properly, is critical.

1. 1.The first move
2. 2.Understand what kind of notice you have received
3. 3.Step 1: Read the notice carefully and note the deadline
4. 4.Step 2: Preserve every relevant document
5. 5.Step 3: Limit internal discussion and control the message
6. 6.Step 4: Obtain legal advice before you respond
7. 7.Step 5: Assess privilege and self-incrimination issues
8. 8.Step 6: Prepare a complete and accurate response
9. 9.Step 7: Consider the bigger picture
10. 10.What this means for directors
11. 11.Frequently Asked Questions

A notice from the Australian Competition and Consumer Commission demands a measured, prompt response. This guide sets out the immediate steps directors and businesses should take after receiving an ACCC notice, including compulsory notices to produce information or documents, so you protect your position and meet your legal obligations.

The first move

A notice from the ACCC is not something to sit on. It often signals that the regulator is investigating conduct under the Competition and Consumer Act 2010 (Cth) or the Australian Consumer Law. This guide sets out the immediate steps directors and businesses should take so they meet their legal obligations and protect their position.

Understand what kind of notice you have received

The ACCC has a range of tools. One of the most common is a compulsory notice requiring a person to produce information or documents, or to give evidence. This is widely known as a section 155 notice, after the provision in the Competition and Consumer Act 2010 (Cth) that creates the power. A section 155 notice is not a request you can ignore. It carries legal obligations, and failing to comply or giving false or misleading information, can have serious consequences.

Other communications may be less formal, such as a letter seeking voluntary cooperation or more advanced, such as an infringement notice or the commencement of court proceedings. Identifying exactly what you have received is the first task, because your obligations and your options depend on it.

Step 1: Read the notice carefully and note the deadline

Read the entire document closely. Identify who the notice is addressed to, what it requires and the date by which you must respond. Compulsory notices set a deadline, and the consequences of missing it can be significant. Diarise the deadline immediately and treat it as fixed unless and until it is formally extended.

Note the precise scope of what is sought. A notice may ask for specific categories of documents, answers to questions or attendance to give evidence. Misreading the scope can lead to under-compliance, or to handing over more than is required.

Step 2: Preserve every relevant document

From the moment a notice arrives, you are on notice that the material is relevant. Do not delete, alter, backdate or destroy anything. That includes emails, messages, file notes, contracts, marketing material and accounting records. Suspend any routine document destruction that might touch the relevant period or subject matter.

Interfering with documents that are the subject of an investigation can expose individuals and the company to serious additional liability. Preservation costs nothing and protects you more than almost anything else you can do at this stage.

Step 3: Limit internal discussion and control the message

Resist the urge to circulate the notice widely or to discuss it freely. Information about an investigation should be confined to those who genuinely need to know. Uncoordinated internal commentary can create unhelpful records and may compromise legal professional privilege over later advice.

Appoint a single, senior point of contact to coordinate the response, so the company speaks with one voice.

Step 4: Obtain legal advice before you respond

Engage a lawyer experienced in regulatory and compliance matters before responding substantively. Early advice helps you understand the precise nature of your obligations, identify any privilege that may protect certain communications and frame a response that is accurate and complete without volunteering material you are not required to provide.

A lawyer can also liaise directly with the ACCC on your behalf, which is often preferable to direct contact by employees who may inadvertently say something that is later relied on.

Step 5: Assess privilege and self-incrimination issues

Some documents and communications may attract legal professional privilege, which must be identified and claimed properly. There are also rules about how compelled answers may be used. These issues are technical and the consequences of getting them wrong can be lasting. This is the kind of analysis that should be done with a lawyer rather than guessed at internally.

Step 6: Prepare a complete and accurate response

When responding to a compulsory notice, accuracy is paramount. Providing false or misleading information to the ACCC is a serious matter. Your response should be carefully checked, properly indexed where documents are produced and submitted within the deadline. If the volume of material or the breadth of the questions makes the deadline genuinely impractical, your lawyer can request an extension, but that should be done early and with a clear explanation.

Step 7: Consider the bigger picture

A notice is often the start of a longer process. The ACCC may follow up with further notices, may seek a court enforceable undertaking, may issue an infringement notice or may commence civil penalty proceedings in the Federal Court. Thinking about strategy from the outset, rather than treating each step in isolation, puts you in a far stronger position. Directors should also consider their personal exposure, which is explained in our guide on director liability.

What this means for directors

Directors carry particular responsibility. They should make sure the organisation responds properly, that documents are preserved and that legal advice is obtained. A calm, methodical and well advised response protects both the company and the individuals involved. Panic, delay or informal handling tends to make matters worse.

Frequently Asked Questions

What is a section 155 notice?

A compulsory notice issued under the Competition and Consumer Act 2010 (Cth) requiring a person to produce information or documents, or to give evidence, to the ACCC. It is not optional, and there are consequences for failing to comply or for providing false or misleading information.

How long do I have to respond to an ACCC notice?

The notice itself states the deadline, which varies with the scope and circumstances. Diarise it immediately, and if compliance within the time stated is genuinely impractical, ask your lawyer to seek an extension early rather than missing the date.

Can I refuse to provide documents to the ACCC?

A compulsory notice generally must be complied with. There may, however, be grounds to claim legal professional privilege over certain material and there are technical rules about compelled answers. These should be assessed with a lawyer rather than decided unilaterally.

Should I contact the ACCC directly?

It is usually better to have your lawyer communicate with the ACCC, which helps ensure what is said is accurate, measured and consistent and reduces the risk of inadvertently prejudicing your position.

What happens if I ignore the notice?

Ignoring a compulsory notice can lead to serious consequences. The safer course is to take it seriously, preserve documents, get advice and respond properly within time.

This is general information, not advice on your situation. If you have received an ACCC notice and want help responding, get in touch or call (07) 4270 8880.

This article is for general information purposes only and does not constitute legal advice and should not be relied on as such. While we take reasonable care to ensure the accuracy of the information provided, we make no representations or warranties as to its completeness, currency or reliability. We accept no liability for any loss or damage arising directly or indirectly from the use of, or reliance on, this website's content. You should always seek professional advice tailored to your specific circumstances before acting on any information in this article. Liability limited by a scheme approved under Professional Standards Legislation.