Enhanced information-gathering powers for Australian competition regulator

By Mihkel Wilding.

Key Points:
If an ACCC official is satisfied that particular protected information obtained under compulsion by the ACCC will enable or assist a foreign government body to perform "any of the functions or powers" of that agency or body, the ACCC may disclose the "protected information" to that agency or body.

Since 19 July 2007, the Trade Practices Act ("the TPA") has had a new provision intended to enhance the ability of Australia's competition regulator, the Australian Competition and Consumer Commission ("ACCC"), to share information with "a foreign government body".

The new section 155AAA enhances the ACCC’s wide investigatory powers to compel the production of documents and information, before it initiates formal proceedings, from persons it suspects may have contravened the TPA.

Previously, the ACCC could only seek to share information with a foreign competition regulator via the Mutual Assistance in Business Regulation Act. That Act sets out the procedure which applies to the provision of information by a Commonwealth regulator (such as the ACCC) to a foreign regulator in civil matters involving the enforcement of a "foreign business law", or by seeking to rely on other standing mutual assistance arrangements with foreign competition regulators such as the US Department of Justice/Federal Trade Commission.

The new section means, however, that if an ACCC official is satisfied that particular protected information obtained under compulsion by the ACCC will enable or assist a foreign government body to perform "any of the functions or powers" of that agency or body, the ACCC may disclose the "protected information" to that agency or body. This disclosure may or may not be subject to conditions.

"Protected information" includes:

• information that was "given in confidence" to the ACCC or obtained pursuant to, and relates to, an applicable provision of the TPA;
• information that was "given in confidence" to the ACCC by a foreign government body and relates to a matter arising under a provision of a law of a foreign country or part of a foreign country.

Protected information would therefore include information given in response to a section 155 notice issued by the ACCC.

While the section refers to the disclosure of protected information with consent, on its drafting the section does not appear to require the consent of the discloser to the disclosure of protected information to a "foreign government body", including a competition regulator. If that is correct, the ACCC will be able to share information it has obtained under a section 155 notice by relying on section 155AAA(12) which permits disclosure to certain Australian government agencies and foreign government bodies where the ACCC is satisfied the disclosure will assist them to perform their duties or powers. Previously this could not have occurred.

To date, no guidance has been provided on how the new section 155AAA is likely to be interpreted and applied in practice. Given that cartel busting has been identified as a key priority for the ACCC in the years ahead, it may not be long before the provision is used by the ACCC to allow it to share information with a foreign competition regulator in a cross-border cartel investigation.