ACCC Investigations in Australia 2026: a Practical Playbook for Businesses

An ACCC investigation in Australia can arrive without warning, a phone call from the regulator, a section 155 notice demanding documents, or a dawn raid, and the decisions made in the first hours determine the legal exposure that follows. The enforcement environment in 2026 has sharpened considerably: the Competition and Consumer Amendment (Unfair Trading Practices) Bill 2026 has passed both houses of Parliament, broadening the conduct the ACCC can target and increasing the penalties at stake. Australian consumer law enforcement activity is already at elevated levels, with high-profile actions against fuel suppliers in early 2026 signalling the regulator’s appetite for complex, multi-party investigations.

This playbook delivers the immediate, step-by-step response framework that general counsel, CFOs and boards need when responding to regulator investigations, covering preservation, compulsory process, interlocutory relief, directors’ duties and post-investigation strategy.

Why ACCC Investigations Are a 2026 Priority for Business

The ACCC’s enforcement posture has intensified across multiple sectors. The regulator’s public enforcement actions in the first quarter of 2026, including investigations into diesel supply arrangements, demonstrate a willingness to pursue conduct across national supply chains and to escalate matters quickly from preliminary inquiry to compulsory notice stage. The introduction and passage of the Competition and Consumer Amendment (Unfair Trading Practices) Bill 2026 further expands the ACCC’s mandate by inserting a general prohibition on unfair trading practices into the Australian Consumer Law. The Bill explicitly targets conduct that unreasonably manipulates consumers or distorts the conditions under which transactional decisions are made, extending reach to practices such as dark patterns and drip pricing.

Industry observers expect this widened legislative scope to generate a new wave of ACCC inquiries across digital commerce, retail, subscription services and financial products throughout the remainder of 2026 and into 2027.

For businesses, the practical consequence is clear: the window between receiving first contact from the ACCC and crystallising legal risk has narrowed. A structured, pre-planned response is no longer optional, it is a governance imperative.

Immediate Steps When the ACCC Comes Knocking (First 48 Hours)

The actions taken during the first 48 hours of an ACCC investigation in Australia set the trajectory for everything that follows. Whether the initial trigger is a voluntary request for information, a section 155 notice, or a search warrant, the response framework below applies.

1. Assemble a response team immediately. Designate an in-house legal lead with authority to coordinate across business units. Engage external competition litigation counsel with enforcement defence experience. Brief forensic IT support and, where the matter is likely to attract media attention, communications advisers.
2. Issue a litigation hold and preserve all evidence. Within hours, not days, distribute a written preservation notice to every custodian who may hold relevant documents or data. Suspend automated deletion policies, email purge schedules and records-management routines across identified systems.
3. Log and secure all regulator contact. Record the date, time, ACCC officer name, stated purpose and any documents exchanged for every interaction. Do not volunteer information beyond what is strictly required.
4. Activate a privilege protocol. Pause non-essential internal communications on the subject matter. Ensure that all substantive communications about the investigation are routed through legal counsel and clearly marked as privileged.
5. Identify high-risk documents and business units. Conduct a rapid triage to isolate the datasets, contracts, pricing records and communications most likely to be relevant. Quarantine these materials for priority legal review.
6. Determine your engagement posture. Take early counsel advice on whether proactive engagement with the ACCC, limited formal-channel responses, or a combination best serves the company’s position. This decision should be made deliberately, not by default.

Who to Assemble: Roles and Responsibilities

A complete response team for an ACCC investigation in Australia typically includes the following core roles:

• In-house legal lead. Coordinates the internal response, manages privilege and acts as the single point of contact for external counsel.
• External competition litigator. Provides strategic advice on enforcement risk, manages dealings with the ACCC and prepares for potential court proceedings.
• Forensic IT specialist. Executes the litigation hold, images devices, preserves metadata and supports document-review workflows.
• Communications counsel or adviser. Manages internal messaging and external media strategy, ensuring nothing said publicly compromises legal position.
• Board liaison or company secretary. Keeps the board informed through appropriately privileged channels and manages director-level obligations.

Immediate Evidence Preservation Steps (Technical Checklist)

Evidence preservation is the single most time-critical task when responding to regulator investigations. Spoliation, the destruction or alteration of relevant material, even if inadvertent, can expose a business to adverse inferences, penalties and serious reputational harm. The following technical steps should be executed within the first 24 hours:

1. Issue a written legal hold notice to all identified custodians (including former employees with accessible accounts). Require acknowledgement of receipt.
2. Suspend automated deletion across email servers, messaging platforms (including Slack, Teams and WhatsApp), cloud storage and enterprise systems.
3. Image key devices. Forensically image laptops, mobile phones and shared drives of priority custodians. Preserve original metadata.
4. Snapshot databases and transaction systems. Take point-in-time copies of CRM, ERP, pricing and compliance platforms relevant to the investigation’s scope.
5. Secure physical records. Lock filing cabinets and storage rooms containing hard-copy contracts, meeting minutes or handwritten notes.
6. Document the chain of custody for every item collected, recording who handled it, when and how it was stored.

Responding to ACCC Notices, Compulsory Process and Subpoenas

The ACCC has a range of compulsory instruments it can deploy during an investigation. Understanding the type of instrument received, and the obligations and timelines it creates, is essential for a measured ACCC notice response.

• Voluntary requests for information. These are not legally compulsory but refusing to engage may influence the ACCC’s decision to escalate to formal process.
• Section 155 notices (under the Competition and Consumer Act 2010). These require a person to furnish information, produce documents or appear for examination. Non-compliance is a criminal offence.
• Subpoenas and court orders. Issued in the context of court proceedings, these require production of documents or attendance to give evidence.
• Search warrants. In serious matters (particularly criminal cartel investigations), the ACCC may obtain and execute search warrants, sometimes coordinated with the Australian Federal Police.

The practical response should follow a structured timeline:

How to Preserve Privilege While Responding

Every production carries the risk of inadvertent privilege waiver. Before any documents leave the organisation, ensure a privilege review is completed, even if only at a sampling level for high-volume productions. Prepare a privilege log listing each withheld document by date, author, recipient and the basis of the claim. Where the ACCC challenges a privilege claim, be prepared to have the issue determined by the court or an independent reviewer rather than conceding under time pressure.

Tactical Objections and Rolling Production

Not every notice must be accepted at face value. Where a section 155 notice is unreasonably broad, disproportionate or seeks material plainly outside the scope of the investigation, it is appropriate to raise these objections with the ACCC in writing and, where necessary, seek judicial review. A rolling-production approach, delivering clearly responsive material first while continuing to review more complex datasets, demonstrates good faith and often satisfies the ACCC’s operational needs without waiving the right to object to specific categories.

Preserving Evidence and Running a Rapid Document Review

Effective evidence preservation during an ACCC investigation depends on rapid identification of custodians, data types and priority sources. The table below provides a template for the initial triage:

For investigations expected to generate large data volumes, structure the review in two phases. The first phase, a 48- to 72-hour triage, focuses on the most senior custodians and the most obviously relevant date ranges, using targeted search terms agreed with counsel. The second phase extends the review over two to four weeks, broadening custodians and refining terms based on what the initial triage reveals.

The ACCC itself acknowledges that investigations vary significantly in duration and complexity. Straightforward consumer law matters may be resolved within months, while complex competition investigations can extend over a year or more. Businesses should plan resourcing accordingly and avoid treating evidence preservation as a one-off exercise, it must be maintained for the life of the investigation.

Interlocutory Relief, Freezing Orders and Urgent Court Responses

In some ACCC investigations, the need arises for a business to seek urgent court orders, not against the regulator (which is rare and carries significant cost risk), but against third parties whose conduct threatens the company’s position. Interlocutory relief in Australia may be warranted in several scenarios:

• Asset preservation. Where there is a real risk that a counterparty or co-respondent will dissipate assets before judgment, a freezing order (Mareva injunction) may be sought.
• Document protection. Where third parties hold documents critical to the defence and may destroy them, an Anton Piller-style order or urgent discovery application can secure the material.
• Restraining publication. In limited circumstances, an injunction may prevent a third party from publishing confidential information disclosed during the investigation.

Practical Step-Plan for Urgent Court Relief

The applicant must demonstrate a prima facie case and a risk of irreparable harm if relief is not granted. The practical steps are as follows:

1. Prepare a detailed supporting affidavit setting out the factual basis, urgency and risk of prejudice.
2. Draft the proposed orders with precision, courts will scrutinise any overreach.
3. File the application on an ex parte or shortened-notice basis where the circumstances require it.
4. Be prepared for the cost consequences: an undertaking as to damages will almost always be required.

Seeking interlocutory relief against the ACCC itself, for example, to restrain the exercise of investigative powers, is possible in principle but carries high evidentiary thresholds and significant adverse cost exposure. It should only be considered where there is clear jurisdictional error or procedural unfairness.

Directors’ Duties and Personal Exposure During ACCC Investigations

Directors face distinct personal risks when the ACCC investigates the company they govern. Fiduciary duties and the duty of care and diligence under the Corporations Act 2001 do not pause because a regulator is at the door, they intensify. Directors who fail to take reasonable steps to ensure the company responds lawfully to an investigation, or who participate in the destruction of evidence, risk personal liability for accessorial or aiding-and-abetting contraventions of the Australian Consumer Law.

The practical steps for directors during investigations include:

• Convene a board briefing promptly. The board should be informed of the investigation through a privileged briefing from legal counsel. Ensure the briefing is documented as a privileged communication.
• Preserve independence. Directors who are also executives involved in the impugned conduct should consider whether their personal interest conflicts with their duties as a director. Independent legal advice may be required.
• Do not destroy evidence or direct others to do so. This may constitute obstruction and attract personal penalties.
• Notify D&O insurers. Most directors’ and officers’ liability policies require prompt notification of any circumstance that may give rise to a claim. Failure to notify within the policy period may void coverage.
• Seek independent counsel where appropriate. A director’s personal interests in an investigation may diverge from the company’s interests. Recognising that divergence early is critical.

Practical Outcomes: Enforcement Pathways, Penalties and Typical ACCC Remedies in 2026

The range of enforcement outcomes the ACCC may pursue has expanded in 2026, particularly in light of the unfair trading practices bill now enacted. The following table summarises the key remedy types and their commercial implications:

The new general prohibition on unfair trading practices, targeting conduct that unreasonably manipulates consumers or unreasonably distorts the conditions under which transactional decisions are made, creates an additional avenue for Australian consumer law enforcement. The Law Council of Australia, in its submission on the exposure draft, raised concerns about the breadth of the prohibition and the risk of uncertainty for businesses navigating its application. Early indications suggest that the ACCC intends to test the boundaries of the new provision promptly, and businesses operating in digital commerce, subscription services and consumer finance should treat the prohibition as a live compliance risk.

Communications and Media: Managing Reputation While Protecting Legal Privilege

An ACCC investigation often becomes public, whether through the ACCC’s own media releases, market disclosure obligations or press reporting. Managing communications during this period requires discipline:

• Appoint a single, authorised spokesperson. All media inquiries should be routed through one person, briefed by legal counsel.
• Make no ad hoc public statements. Off-the-cuff comments by executives or staff can create admissions or undermine privilege.
• Balance transparency with legal risk. ASX-listed entities may have continuous disclosure obligations, but the content and timing of any announcement should be settled in consultation with lawyers.
• Monitor the ACCC’s own media activity. The ACCC publishes media releases and updates its public register of enforcement actions. Track these and prepare responsive statements in advance where possible.

Post-Investigation: Remediation, Undertakings and Litigation Readiness

If the ACCC proposes an enforceable undertaking, the negotiation process is itself a critical phase. Key steps include:

1. Assess the terms critically. Undertakings are registered publicly and bind the company. Negotiate carve-outs, sunset clauses and practical compliance milestones.
2. Plan for compliance program implementation. Most undertakings require a tailored compliance program, independent auditing and reporting obligations. Budget for these from the outset.
3. Prepare for the possibility of litigation. If terms cannot be agreed, or if the ACCC proceeds to court, the company must be litigation-ready: witness proofing, expert reports, damages modelling and trial strategy should be advanced in parallel with negotiations.
4. Assess follow-on risk. Adverse findings or admissions in an undertaking or court proceeding may trigger follow-on class actions by consumers, competitors or shareholders. Factor this exposure into any settlement calculus.

The overall exposure profile for any entity subject to an ACCC investigation in Australia depends on the entity type and conduct involved:

Checklist Annex and Quick Templates

The following templates and checklists can be adapted for immediate use when an ACCC investigation commences:

• Litigation hold notice (template). “To all staff: [Company] has become aware of a regulatory investigation. You are directed to preserve all documents, emails, messages, files and data, in any format, that may relate to [subject matter]. Do not delete, alter, move or destroy any such material. This direction overrides any existing document-retention or auto-deletion policy. Please acknowledge receipt of this notice to [in-house legal lead] by [date/time].”
• ACCC contact log (template). Record the following for every interaction: date and time; ACCC officer name and contact details; method of communication (phone, email, in person); stated purpose; any documents or information requested or provided; and the name of the company representative involved.
• Board escalation checklist. Trigger a privileged board briefing when: a section 155 notice is received; a search warrant is executed; the ACCC signals it may commence proceedings; or the investigation scope expands to include director or officer conduct.
• Privileged cover letter (sample). “This letter, and its enclosures, are prepared for the dominant purpose of providing legal advice and are subject to legal professional privilege. This letter is confidential and must not be disclosed to any third party without the prior written consent of [law firm / in-house counsel].”

Sources

1. Australian Competition & Consumer Commission (ACCC)
2. Parliament of Australia, Competition and Consumer Amendment (Unfair Trading Practices) Bill 2026
3. Treasury, Unfair Trading Practices Exposure Draft Consultation
4. Gilbert + Tobin, Australia Cracks Down on Unfair Trading Practices
5. K&L Gates, Unfair Trading Prohibition Proposed
6. Law Council of Australia, Submission on Unfair Trading Practices Exposure Draft
7. ABC News, ACCC Takes Enforcement Action Against Fuel Suppliers
8. AustLII, Competition and Consumer Amendment (Unfair Trading Practices) Bill 2026