'Dawn Raids' - Do You Know What To Do?

INTRODUCTION

A 'dawn raid' is an unannounced visit, usually to your

business but possibly also to your home, by the competition

authority, in Australia the ACCC. Officers will usually arrive at

the beginning of the day, when businesses are least prepared and

capable of responding and can involve a search of your filing

cabinets, your computer systems or even your car. Dawn raids are

most commonly used for 'cartel busting'.

While dawns raids are historically very rare, the recent focus

of ACCC enforcement activities on detecting and prosecuting

cartels, the impending criminalisation of cartels in Australia,

recent changes to the Trade Practices Act to extend the ACCC's

search and seizure powers and the trend overseas towards the

increasing use of dawn raids by regulators in the pursuit of

cartels suggest that complacency is inadvisable. Rather than being

taken by surprise by a 'dawn raid', it is important that

your company has clear guidelines for employees to follow if the

ACCC turns up one day. In this update we describe the steps you

should take if the ACCC does seek to search your premises.

ACCC'S SEARCH AND SEIZURE POWERS

Recent amendments to the Trade Practices Act have extended the

ACCC's powers to enter and search premises where it believes

there may be material relevant to a contravention of the Act.

Previously, the ACCC had the power to authorise a member of its

staff to enter a company's premises and to inspect and copy

documents where it had reason to believe that a person had

contravened or was contravening the Trade Practices Act. The recent

changes extend the ACCC's powers to enable it to search for and

seize documents. However, under the new provisions the ACCC must

obtain a search warrant from a Magistrate prior to entering

premises without consent.

The ACCC can now search a company's premises in two

ways:

By obtaining a search warrant from a Magistrate.

With the consent of the company.

The ACCC is permitted to search for and seize 'evidential

material' which consists of documents or things that may afford

evidence relating to a contravention of the Trade Practices Act,

Part 20 of the Telecommunications Act 1997 or Part 9 of the

Telecommunications (Consumer Protection and Service Standards) Act

1999.

WHAT TO DO IF THE ACCC COMES KNOCKING

We have prepared the following guides to assist your employees

to deal with an ACCC search. These guides cover what to do if the

ACCC:

Presents a search warrant for your company's premises.

Requests the company's consent to enter and search

premises.

In addition to the information in the guides, staff confronted

with an ACCC search should remain calm, not panic and deal politely

with the ACCC officers.

If the ACCC conducts a search of your premises, you should also

consider sending a member or members of your staff to other

locations which the ACCC is likely to simultaneously search, for

example, the CEO's home, a factory or warehouse (if

applicable), or any suburban office(s) you may have.

GUIDE 1: SEARCH WARRANTS

If the ACCC presents a search warrant for your company's

premises:

1. Do not obstruct entry of the ACCC onto the

premises

When the ACCC arrives at your premises you should:

Ask to see the search warrant, and take a copy.

Ask to see the ACCC inspector's identity card and

identification of any person assisting the inspector, and take a

copy of that identification.

Where the ACCC inspector produces an identity...