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COMPETITION AND CONSUMER ACT 2010 - SECT 95ZK

Power to obtain information or documents

Notice by Commission

             (1)  If the Chairperson has reason to believe that a person is capable of giving information or producing documents relevant to:

                     (a)  the Commission considering the matters contained in a locality notice that the person has given it; or

                     (b)  an inquiry that is being held in relation to the person; or

                     (c)  a supply of goods or services by the person that is of a kind in relation to which the Commission is carrying out an inquiry; or

                     (d)  a supply of goods or services by the person that is of a kind in relation to which the Commission is monitoring under section 95ZE or 95ZF;

the Chairperson may, by notice in writing signed by him or her and given to the person, require the person to do one or more of the following:

                     (e)  give the Commission, by writing signed by the person or his or her agent or, in the case of a Commonwealth authority or a body corporate, by a competent officer of the authority or body, within the specified period and in the specified manner, specified information relating to the affairs of the person;

                      (f)  produce to the Commission, within the specified period and in the specified manner, specified documents relating to the affairs of the person;

                     (g)  if the person is a body corporate and the notice relates to the matter in paragraph (d)--give the Commission, together with the information or documents concerned, a declaration in a form approved by the Chairperson and signed by:

                              (i)  the Chief Executive Officer (however described) of the body corporate; or

                             (ii)  a person nominated by the Chief Executive Officer;

                            stating that the information or documents are true and correct.

Notice by other bodies

             (2)  If:

                     (a)  an external inquiry is being held in relation to a person; and

                     (b)  the inquiry Chair has reason to believe that the person is capable of giving information or producing documents relevant to the inquiry;

the inquiry Chair may, by notice in writing signed by him or her and given to the person, require the person:

                     (c)  to give the body, by writing signed by the person or his or her agent or, in the case of a Commonwealth authority or a body corporate, by a competent officer of the authority or body, within the specified period and in the specified manner, specified information relating to the affairs of the person; or

                     (d)  to produce to the body, within the specified period and in the specified manner, specified documents relating to the affairs of the person.

Period specified in notice

             (3)  A period specified in a notice under subsection (1) or (2) must end at least 14 days after the notice was given.

          (3A)  A member of the Commission may vary a notice under subsection (1) to extend, or further extend, the period.

          (3B)  Subsection (3A) does not affect any operation that subsection 33(3) of the Acts Interpretation Act 1901 has in relation to a notice under subsection (1) of this section.

Offence: refusal or failure to comply with notice

             (4)  A person commits an offence if the person refuses or fails to comply with a notice given to the person under this section.

Penalty:  20 penalty units.

             (5)  Subsection (4) does not apply if the person has a reasonable excuse.

Note:          A defendant bears an evidential burden in relation to the matter in subsection (5) (see subsection 13.3(3) of the Criminal Code ).

             (6)  It is a reasonable excuse for the purposes of subsection (4) for an individual to refuse or fail to give information or produce a document on the ground that the information or production of the document might tend to incriminate the individual or to expose the individual to a penalty.

             (7)  Subsection (6) does not limit what is a reasonable excuse for the purposes of subsection (5).

Offence: false or misleading declarations

             (8)  A person must not, in a declaration made for the purposes of paragraph (1)(g), make a statement if the person knows, or is reckless as to whether, the statement is false or misleading.

Penalty:  20 penalty units.

Making information or documents publicly available

             (9)  If:

                     (a)  a notice is given to a person under this section relating to an inquiry that is being held in public in relation to the person; and

                     (b)  the person gives the information concerned or produces the documents concerned to the inquiry body in connection with the inquiry;

the inquiry body must make the information or documents available to the public in such manner as it thinks fit.

Note:          See also section 95ZN (about confidentiality of information).

Delegation

           (10)  A member of the Commission may, by writing, delegate the member's powers under subsection (3A) to a member of the staff of the Commission who is an SES employee or an acting SES employee.

Note 1:       Section 2B of the Acts Interpretation Act 1901 contains the definitions of SES employee and acting SES employee .

Note 2:       Sections 34AA to 34A of the Acts Interpretation Act 1901 contain provisions relating to delegations.

           (11)  In performing a function, or exercising a power, under a delegation, the delegate must comply with any directions of the member.



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