The Australian government has announced the introduction of a significant extension to the powers of the Australian antitrust regulator, the Australian Competition and Consumer Commission (ACCC) to investigate suspected breaches of the Trade Practices Act (TPA). These powers enhance the ACCC's ability to obtain documents and information from companies (and individuals) doing business in Australia, to support allegations of breaches of the TPA, outside the regular court processes such as discovery, even though proceedings have been commenced.
The situation prior to the foreshadowed amendments
Prior to the foreshadowed amendments, the accepted (but by no means completely certain) view has been that the ACCC's powers to obtain documents and information and to examine persons under section 155 of the TPA cease as soon as the ACCC makes its decision to commence proceedings. Upon commencement of proceedings the ACCC, like all other litigants, is subject to the processes of the court to obtain (and disclose) relevant information and documents. It is also bound by the implied undertaking to use any information disclosed to it pursuant to the proceedings, only for the purposes of those proceedings.
It is proposed to amend section 155 of the TPA to expressly permit the ACCC to exercise, or continue to exercise, its investigative powers under Section 155 until:
"(a) the Commission commences proceedings in relation to the matter (other than proceedings for an injunction, with an 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".
Issues raised by the amendments
The increase in the ACCC's powers raises a number of legal and practical issues, which are not limited in their impact to Australian businesses. Of the myriad issues, some of the more notable include:
- The potential for conflict between use of the extended section 155 powers and the court's processes.
One litigant, the ACCC, will have access to a powerful weapon to obtain information from the other parties to the litigation which other litigants will not have. How, or if, the courts will balance this power, by, for example, ordering the ACCC to give discovery of documents and statements obtained under Section 155 to other parties to the litigation, at or about the time they are obtained (which would not be the "usual" time for provision of discovery) remains to be resolved. Other questions will arise such as the right to reimbursement of the costs of production of such documents (a subpoenaed party would be entitled to payment of its costs whereas a recipient of a section 155 notice is not) and the fact that a section 155 notice requires provision of the documents to the ACCC as opposed to provision only of access to the same as would occur with discovery.
- The potential for the power to cause irreparable damage, even though only interlocutory orders have been made.
The situation may arise where the ACCC obtains an interlocutory injunction and then issues a substantial section 155 notice which takes many months (if not years) to complied with by the recipient and reviewed by the ACCC. In circumstances where the ACCC is not required to give any undertaking as to damages, any substantial delay in seeking or obtaining final orders has the potential to allow the processes of the Court to be effectively circumvented, unless the Courts are prepared to impose time restraints on the process.
- The need for specific restraint on the ACCC's ability to use the information obtained during the section 155 process once litigation is commenced and to share the results of the process with other regulators, including disclosing such material to overseas antitrust agencies.
In the absence of any specific requirement for the information obtained under a section 155 notice issued after commencement of proceedings to be subject to the implied undertaking not to use that material for purposes other than the proceedings in question; and in circumstances where the ACCC has the right to disclose information to specified bodies including a foreign government body1 and where it has a number of co-operation agreements with other regulators, it is not hard envisage a situation where information obtained from a company which also does business overseas finds its way into the hands of other antitrust regulators. Significant complications may arise where such information relates to matters which are criminal offences whether in Australia or in other countries.
The effect of the extension of the ACCC's section 155 powers into areas traditionally the province of the courts will no doubt raise many issues, resolution of which will depend both on the policy which the ACCC adopts in connection with use of its powers in such circumstances and on the courts' attitude to such policy. Businesses both in Australia and overseas need to aware of the extended powers and alert to the potential ramifications of their use.
1 Section 155AAA(12)
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