Insights

25/09/17

Steps in the event of an ACCC search

What to do if you receive an ACCC search warrant (a dawn raid)

The Australian Competition and Consumer Commission (ACCC) may obtain a search warrant authorising it to enter specified premises and seize documents and things (including electronic equipment and data storage devices) if they are of the kind of evidential material specified in the warrant.

If the ACCC has a warrant to search your premises, you must not obstruct the ACCC.

You must allow the ACCC to:

  • enter and search your premises without hindrance (if the warrant accurately identifies to your premises and is otherwise valid);
  • take photographs or make video recordings of the premises; and
  • seize or make copies of materials and things (including electronic equipment and data storage devices).

During the course of a search, employees must answer any factual questions about documents, being careful not to make false statements or volunteer any extra information that has not been requested.

The following section sets out what to do in the event of an ACCC search pursuant to a warrant.

Immediate Steps to Take

Ask to see the search warrant

  • The ACCC must make a copy of the search warrant available to you.
  • The search warrant is likely to be a physical document (in the form of formal Court orders or an email). Ask if you can take a photocopy of the warrant.
  • If it is a telephone warrant, there will be no evidence of it and the person executing the warrant will simply tell you its terms. Take a note of these terms.

Request legal representation before search begins

Ask those executing the warrant if they can wait a short time for you to obtain legal representation before commencing their search.

  • If they do not agreedo not obstruct or refuse their entry into the premises.
  • If they agree, but on certain conditions to obtain reassurance that documents are not being destroyed (eg that employees step away from their computers), comply with those conditions.
  • If the ACCC investigators are willing to wait, ask them to wait in a room that has no files (arrange tea and coffee if available). Take their contact details (ask if you can photocopy their identity cards).

Immediately call legal counsel

Ideally, determine in advance your legal counsel and their contact details in the event of a dawn raid.

Gilbert + Tobin’s contact details are:

Sydney:

Melbourne:

Perth:

Check the details on the warrant – are they valid?

Check the following details on the warrant:

  • The premises specified on the warrant are the premises being searched.
  • The warrant is being executed within the time period specified on the warrant.
  • Those executing the warrant are authorised to do so. (The warrant will specify one or two people who are to execute the warrant. Those individuals can delegate their authority to others.)
  • The alleged breaches of the Competition and Consumer Act 2010 (Cth) to which the warrant relates.
  • The kinds of evidential material that those executing the warrant are entitled to seize (not limited to documents but also including electronic equipment and data storage devices).

If there is not a valid search warrant (ie if the warrant does not meet the criteria set out above), do not permit the ACCC to enter.  Ask the ACCC to wait until legal counsel have arrived.

Ask to see the identity cards

Ask to see the identity cards of each person who is seeking access to the premises under the warrant.  If they are not named on the warrant, ask to see their delegation to do so. Ask if you can take a photocopy of identity cards and delegations of authority.

  • If a person does not have their identity card or their delegation document, do not refuse them entrySay, “if you are not, in fact, permitted to enter the premises, doing so will be a trespass”.
  • State, “we will provide you with reasonable assistance in executing the warrant”.

Ask if you can send out an internal email

Ask if you can send out an internal e-mail announcing the following to staff:

  • the investigation is taking place, and that employees should be polite and professional;
  • no external communications should be sent regarding the investigation; and
  • the company intends to cooperate, and there must be no attempt to delete or conceal documents.

If no lawyers present, then accompany ACCC officers

If no legal representatives are present when ACCC investigators access the premises, staff should accompany ACCC officers at all times when they are on the premises.

You must not hinder those executing the warrant from seizing material. If possible, take note of the documents viewed and the questions asked by the ACCC.

If a document or thing being seized is obviously outside of the scope of the warrant:

  • Ask “does this document fall within the warrant?
  • Take a note of the document and the response received. Do not prevent the document or thing from being removed.

If a document or thing being seized is obviously outside of the scope of the warrant:

  • Although the ACCC is not permitted to take documents that are subject to legal professional privilege (and investigators do not have the right to review privileged documents), do not withhold documents from the ACCC.  What is and is not privileged can be dealt with later.

If documents appear to be privileged on their face, you could do the following:

  • Ask, “can those documents be kept separately from the other documents until the privilege issue is resolved?”
  • Say, “we reserve the right to claim privilege over those documents”.

Obtain a receipt for what is seized

You will be given a receipt for all documents and things seized during the raid by the ACCC.  If you are not provided with this, ensure that you ask for it before the ACCC investigators depart.

Ask for a copy of the material seized

You are entitled to ask for a copy of the material seized.  You should request that such a copy be given to you as soon as practicable after the seizure.

 

Our Experts
-
Partner
+61 2 9263 4362
+61 411 314 505
-
Partner
+61 2 9263 4006
+61 411 137 321
CC
Partner
+61 2 9263 4019
+61 417 269 992
-
Partner
+61 2 9263 4187
+61 410 540 653
-
Partner
+61 3 8656 3312
+61 459 100 211
Consultant
+61 2 9263 4233
+61 410 540 592
-
Partner
+61 2 9263 4014
+61 402 257 604
Image of Jennifer Barron
Partner
+61 2 9263 4063
+61 409 390 634
gp
Special Counsel
+61 2 9263 4388
+61 459 400 019

Categories

Areas of Expertise

Share This

AddThis: