What the notice is

Section 155 of the Competition and Consumer Act 2010 lets the ACCC compel a person to provide information, produce documents or appear to give evidence where it has reason to believe that person can assist with a matter that may involve a contravention. The threshold is low by design. A notice is an investigative tool, not an allegation, and receiving one does not mean the Commission has formed a view about your business. It does mean the Commission has formed a view that you are worth asking.

That distinction matters for tone. Boards tend to treat a 155 notice as either routine paperwork or the first page of a prosecution. It is usually neither. It is a request that must be answered completely, accurately and on time, by people who understand that what they produce will be read by investigators with a theory to test.

The scope is broader than it reads

Notices are drafted to catch everything that might be relevant. “Documents” includes emails, messaging apps, board papers, draft spreadsheets and business material held on employees’ personal devices. Date ranges often run back several years, and a request framed around one product line can reach pricing discussions, distributor correspondence and sales incentives across the group.

The first job is to read the notice the way the Commission will read your response: literally. Where a paragraph is ambiguous, raise it with the case officer early and confirm the agreed interpretation in writing. Narrowing the scope by agreement is common and sensible. Narrowing it by assumption is how companies end up arguing about whether they complied at all.

The deadline is rarely negotiable twice

Return dates are short, often two to three weeks for material that may take longer to locate. The ACCC will usually consider a reasoned request for more time, particularly for a large document production, if it is made promptly and supported by a realistic plan. It is far less sympathetic to a second request, or to one made on the eve of the deadline.

Failing to comply with a notice, or giving information that is false or misleading, is itself an offence. The Act provides a defence where the recipient can show it undertook a reasonable search for the documents requested, which is why the search needs to be planned, documented and defensible from the first day rather than reconstructed afterwards.

What you are entitled to keep

Legal professional privilege survives a section 155 notice. Legal advice and material prepared for litigation can be withheld, but each claim should be identified and able to withstand scrutiny; a blanket claim over an entire mailbox will not. Individuals required to give evidence cannot refuse to answer because the answer might incriminate them, although there are limits on how that answer can later be used against them personally.

Confidentiality is not a ground to refuse production. Commercially sensitive material can be identified as such and the Commission asked to treat it accordingly, and in our experience it generally does.

How we run a response

We start with a short call with the case officer to understand the matter under investigation, agree priorities and settle any questions of scope. We then map where responsive material is likely to sit, preserve it, and brief the people whose documents will be searched. A single decision log records what was searched, how and why — the evidence of a reasonable search if it is ever questioned.

Where the notice requires someone to appear for examination, we prepare them the way we would for any evidence: what the Commission is likely to ask, what the documents show, and the discipline of answering only the question put.

The part that is easy to miss

A 155 notice is often the first visible sign of a wider inquiry. The response is also a chance to understand what the Commission is interested in, to identify any conduct that needs to stop, and to decide whether early engagement would leave the business in a better position. Boards that treat the notice purely as a production exercise tend to meet the underlying issue later, and on worse terms.