2. Australian Competition & Consumer Commission
Dawn Raids by the ACCC
Wendy Peter
General Counsel
Australian Competition & Consumer Commission

3. 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

4. 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

5. 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)

6. 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

7. ACCC Dawn Raids – preparation for a raid
Information about premises
Persons of interest checks
Liaising with local police
Role of personnel involved
Logistical planning
Risk assessment
Operational orders
Personnel briefing

8. 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

9. ACCC Dawn Raids – executing a search warrant
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

10. ACCC Dawn Raids – executing a search warrant
Item location record
Evidence control officer
Video camera operator

11. 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

12. 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

13. 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

14. ACCC Dawn Raids – some challenges
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

15. 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