Rise and shine! What should you do in the event of a “Dawn Raid” from the ACCC

The ACCC has express powers to conduct civil searches of your businesses. That is, if a warrant is granted, they can enter and search the premises and seize documents and materials. These searches, otherwise known as "Dawn Raids," can cause a great deal of stress and confusion to businesses. Many business owners may not be aware of the scope of the ACCC's powers and are unsure of their rights and obligations when these raids occur. Here we provide our practical tips on what to do in the event of a dawn raid from the ACCC.

 

The scope of the ACCC's power

The ACCCs power in relation to civil searches are contained at Part 11D of the Competition and Consumer Act 2010 (Cth). If the ACCC obtains a search warrant, it may:
  1. Enter the premises;
  2. Search the premises for the kind of evidential material specified in the warrant, and seize things of that kind found on the premises;
  3. Make copies of the evidential material found on the premises;
  4. Operate electronic equipment at the premises to see whether evidential material is accessible by doing so;
  5. Take equipment and material onto the premises, and use it, for any of the above premises;
  6. Take photographs, or make video recordings, of the premises or of anything at the premises for a purpose incidental to the execution of the warrant or with written consent of the occupier of the premises; and
  7. Seize any evidence that is unrelated to the warrant, which may be evidence of an indictable offence under the Competition and Consumer Act 2010, certain parts of the Telecommunications Act 1997 and the Telecommunications (Consumer Protection and Service Standards) Act 1999 or an offence under certain sections of the Commonwealth Criminal Code.

What are your rights and obligations as the occupier of the premises?

  1. You are entitled to observe the search being conducted, however this entitlement ends if you obstruct the search;
  2. You must provide the executing officer and any officer assisting with all reasonable facilities and assistance for the effective exercise of their powers; and
  3. Answer questions and produce evidential material to which the warrant relates.

What should you do in the event of a dawn raid?

  1. When the search warrant is first presented to you, review the search warrant and ask to make a a copy for your records. When looking at the search warrant, ask yourself the following:
    1. Is the search being conducted within the time period specified in the warrant?
    2. Are the persons conducting the search warrant authorised under the search warrant? You may ask to see a copy of their ACCC identity cards and we recommend that you request to take photocopies for your records.
    3. Is your premises the premises outlined in the search warrant?

If the answers to the above are "no", you do not have to allow the ACCC access to your premises.

  1. When you are first presented with the warrant, ask the ACCC if they can wait for a short period of time for you to obtain legal representation before the search commences. However, if they say no, do not obstruct the search.
  2. Ensure you accompany the ACCC officers and take notes of what documents they look at and what questions they ask. If you are not sure why a document or question falls within the scope of the warrant, ask the ACCC officer and make a note of their answer. This will particularly be the case for documents or things that may be subject to legal professional privilege. The ACCC is not entitled to take documents that are subject to privilege, however do not withhold documents from the ACCC. Tell the ACCC officer you reserve your rights in relation to privileged documents and inform your lawyer that the ACCC may have taken possession of privileged documents.
  3. Answer all questions asked by the ACCC and ensure you comply with the search warrant by providing all material that the scope of the warrant relates to.
  4. Make sure you ask the ACCC to provide you with copies of all documents seized and a receipt for everything seized before they leave.
Our Litigation and Dispute Resolution Group has extensive experience in assisting and advising our clients in relation to compliance with the Competition and Consumer law. We can also assist in training your staff or legal counsel on what to do in the event of a dawn raid. If your premises is the subject of a dawn raid, urgently contact our Litigation and Dispute Resolution Group so we can advise you.

Contributors

Luke Dominish Associate
Jennifer Bradley Lawyer