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Schedule 11—Power to obtain information, documents and evidence

Schedule 11 Power to obtain information, documents and evidence


Competition and Consumer Act 2010

1  Subsection 155(1)

Omit all the words from and including “that constitutes” to and including “subsection 95AZM(6)”, substitute “referred to in subsection (2)”.

2  After subsection 155(1)


             (2)  For the purposes of subsection (1), the matter must be a matter that:

                     (a)  constitutes, or may constitute, a contravention of:

                              (i)  this Act; or

                             (ii)  Division 4A or 4B of Part 3.3 of the Radiocommunications Act 1992 ; or

                            (iii)  any of the terms of an undertaking under section 87B of this Act or under section 218 of the Australian Consumer Law; or

                     (b)  is relevant to:

                              (i)  a designated communications matter (as defined by subsection (9) of this section); or

                             (ii)  a designated water matter (as defined by subsection (9A) of this section); or

                            (iii)  the making of a decision by the Commission under subsection 90(1) in relation to an application for a merger authorisation; or

                            (iv)  the making of a decision by the Commission under subsection 91B(4), 91C(4), 93(3) or (3A) or 93AC(1) or (2).

3  After subsection 155(5A)


          (5B)  Paragraph (5)(a) does not apply to the extent that:

                     (a)  the notice relates to producing documents; and

                     (b)  the person proves that, after a reasonable search, the person is not aware of the documents; and

                     (c)  the person provides a written response to the notice, including a description of the scope and limitations of the search.

Note:          A defendant bears a legal burden in relation to the matter in paragraph (5B)(b) (see section 13.4 of the Criminal Code ).

             (6)  For the purposes of (but without limiting) paragraph (5B)(b), a determination of whether a search is reasonable may take into account the following:

                     (a)  the nature and complexity of the matter to which the notice relates;

                     (b)  the number of documents involved;

                     (c)  the ease and cost of retrieving a document relative to the resources of the person who was given the notice;

                     (d)  any other relevant matter.

4  Subsection 155(6A)

Omit “a fine not exceeding 20 penalty units or imprisonment for 12 months”, substitute “imprisonment for 2 years or a fine not exceeding 100 penalty units”.

5  Existing section 155 notices

(1)       If a notice issued under subsection 155(1) of the Competition and Consumer Act 2010 was in force immediately before the commencement of this item, after that commencement:

                     (a)  the notice continues in force; and

                     (b)  section 155 of the Competition and Consumer Act 2010 as amended by this Act applies in relation to the notice;

as if the notice had been issued under that section as so amended.

(2)       However, the amendment of subsection 155(6A) of the Competition and Consumer Act 2010 made by this Schedule does not apply in relation to a notice served before the commencement of this item.