Australian Competition & Consumer Commission Dawn Raids by the ACCC Wendy Peter General Counsel Australian Competition & Consumer Commission

ACCC Dawn raids – legal framework Part XID of the Competition and Consumer Act 2010 (CCA) contains search and seizure provisions Search warrant required for ACCC to conduct a dawn raid A warrant authorises entry and search of premises for evidential material in relation to any section of the CCA as well as some provisions of the Criminal Code and telecommunications legislation Can form part of ACCC’s investigation into criminal or civil matters

ACCC Dawn raids – legal framework The executing officer must be an inspector appointed by the Chairperson of the ACCC Inspector issued with an identity card, which must be carried and produced to an occupier on request The executing officer must be an inspector The executing officer may authorise an ACCC staff member, a member of the Australian Federal Police or a consultant to be officers assisting in the execution of the warrant

ACCC Dawn Raids – obtaining a warrant ACCC must appear in person before a magistrate to apply for a warrant but can apply electronically in urgent cases Warrant must set out: Description of premises Kind of evidential material to be searched for Name of inspector who is to be responsible Times when warrant will be executed Date on which warrant ceases (no more than 7 days)

Dawn raids – obtaining a warrant Supporting affidavit also prepared to set out information to allow a magistrate to be satisfied that there are reasonable grounds for suspecting that there is evidential material on the premises Magistrate may require further information

ACCC Dawn Raids – preparation for a raid Information about premises Persons of interest checks Liaising with local police Role of personnel involved Logistical planning Risk assessment Operational orders Personnel briefing

ACCC Dawn Raids – rights and obligations of occupier May ask inspector to produce identity card Right to observe search Obligation to provide reasonable facilities and assistance Obligation to answer questions and provide evidential material

ACCC Dawn Raids – executing a search warrant Conduct authorised by warrant Obtaining assistance Initial entry Searching and seizing Extended power of seizure Operating electronic equipment Removing things for processing or examination Securing electronic equipment Receipts

ACCC Dawn Raids – executing a search warrant Item location record Evidence control officer Video camera operator

ACCC Dawn Raids – privileged documents ACCC officer may take a brief look at a document to determine whether likely to contain privileged material The document will be returned if it is clearly privileged If it is not clear whether LPP applies, the document will be sealed in a container and held by a third party. The party claiming LPP has 4 business days to commence proceedings to establish privilege Additional time is provided for LPP claims in relation to electronic data which is copied from hard drives and servers etc

ACCC Dawn Raids – when is a raid appropriate? The ACCC uses dawn raids infrequently Appropriate where concern that evidence may be destroyed Usually used before ACCC investigation becomes known to parties being investigated The CCA also contains provisions dealing with entry by consent Other powers available to the ACCC in an investigation include power to compel information, document and attendance to give evidence

ACCC Dawn Raids – approach to hypothetical scenario Based on the information provided by CropPro, there are reasonable grounds for suspecting that there may be evidential material at the premises of AgForce and RurualPro in Australia Dawn raid likely to be planned to ensure the ACCC obtains evidential material before AgForce and RurualPro become aware of investigation Since CropPro is seeking markers in a number of jurisdictions, need to coordinate with other regulators

ACCC Dawn Raids – some challenges Identifying items which point to other criminal offences Time limits of warrant (7 days maximum) Maintaining focus and control during search Large volume of documents IT challenges Dealing with privilege claims

ACCC Dawn Raids – what works well Clear internal guidance and training re powers and procedures Measures to protect operational integrity pre search Search warrant requirement means ACCC must prepare well and satisfy a magistrate of the basis for the warrant Efficient document handling practices during and after raid

www.accc.gov.au