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