Wendy Peter - Australian Competition & Consumer

Report
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
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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
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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
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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

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