How to Respond to an ACCC Investigation in Australia (2026): Section 155, Privilege & Penalties

Knowing how to respond to an ACCC investigation in Australia is now a core competency for every board and general counsel. The Australian Competition and Consumer Commission’s 2026 enforcement priorities continue to drive an increased use of compulsory information-gathering powers, particularly section 155 notices under the Competition and Consumer Act 2010 (CCA), and the penalties for non-compliance are criminal. This article provides a practical, step-by-step playbook covering the immediate triage window, privilege preservation, document-production mechanics, cooperation strategy and director-level risk. It is designed to be read alongside the ACCC’s own published guidelines and to give in-house teams a defensible framework they can act on within hours of receiving a notice.

Quick-Action Checklist, Your First 24 Hours After an ACCC Section 155 Notice

The actions taken (or not taken) in the first day after contact from the ACCC often determine the trajectory of the entire matter. Use the checklist below to stabilise the situation before deeper legal analysis begins.

• Confirm receipt and record the notice. Log the date, time, method of delivery and the identity of the ACCC officer. Photograph or scan the notice immediately and store it in a secure, restricted-access folder.
• Identify the compliance deadline. Note the date by which documents, information or attendance is required. Mark it in the legal team’s calendar with an advance reminder set for at least five business days prior.
• Issue a litigation-hold / evidence-preservation directive. Instruct all potentially relevant custodians, named and unnamed, to preserve documents, emails, instant messages and metadata. Suspend automatic-deletion policies for affected systems.
• Notify the General Counsel or Chief Legal Officer. If external competition counsel has not yet been engaged, begin the appointment process now. Privilege over future communications depends on timely engagement.
• Brief the CEO, CFO and Company Secretary. Provide a one-page summary covering the notice type, the deadline, the likely scope of documents and the penalties for non-compliance.
• Determine whether board notification is triggered. Check the company’s continuous-disclosure obligations (ASX Listing Rules, if applicable) and board charter escalation thresholds.
• Isolate key custodians. Identify the individuals whose documents and communications are most likely within scope. Instruct them not to discuss the investigation with colleagues outside the legal response team.
• Commence a preliminary privilege review. Flag any communications between the company and its lawyers that may fall within scope. Do not produce anything until a privilege review protocol is in place.
• Assess whether to seek a variance or extension. If the deadline or scope is unmanageable, prepare to contact the ACCC promptly to negotiate; unreasonable delay in seeking a variance signals non-cooperation.
• Establish a single point of contact with the ACCC. Designate one external or internal lawyer to manage all communications with the Commission to avoid inconsistent statements.

Practitioner tip: Treating the first 24 hours as an exercise in containment and preservation, rather than substantive legal debate, protects position and signals seriousness to the regulator.

What Is an ACCC Section 155 Notice? Understanding the Powers, Scope and Legal Test

Section 155 of the CCA is the ACCC’s principal compulsory information-gathering tool. It authorises the Commission to require, by written notice, the production of documents, the furnishing of information, or attendance at an oral examination, provided the ACCC Chairperson (or a deputy) has “reason to believe” that a person is capable of providing material relevant to a matter that constitutes, or may constitute, a contravention of the Act.

• Documents: The notice may compel production of any documents in a person’s possession or control, including emails, contracts, board minutes, spreadsheets and instant messages.
• Information: The notice may require written answers to specific questions, effectively compelling a narrative response on factual matters.
• Oral examination: The notice may require a named individual to attend and answer questions under oath or affirmation, a power that carries significant self-incrimination implications.

Who Can Be Served With a Section 155 Notice?

Notices can be directed at corporations, their officers, employees or any individual the ACCC believes is capable of providing relevant material. This includes former employees and third parties such as suppliers, customers or professional advisers (subject to privilege). There is no requirement that the recipient be a suspected contravener; the threshold is capacity to provide relevant information.

Types of Content Required: Emails, Recordings and Metadata

In practice, ACCC notices increasingly specify electronic formats and may require production in native file format with metadata intact. Practitioners advising on how to respond to an ACCC investigation online should note that the Commission expects digital records, including cloud-hosted files, messaging-platform exports and calendar entries, to be collected and produced with the same rigour as hard-copy documents. The ACCC’s published guidelines on the use of section 155 powers set out the procedures the Commission follows and the obligations of the recipient.

ACCC Investigation Stages, Timeframes and Likely Outcomes

Understanding the typical lifecycle of an ACCC investigation helps boards allocate resources and set realistic expectations. The ACCC’s own published framework describes three broad stages.

When Matters Escalate to Enforcement

Escalation is more likely where the ACCC identifies conduct that aligns with its annual compliance and enforcement priorities, where harm to consumers or competition is significant, or where a company has failed to cooperate. Industry observers expect that matters involving cartel conduct, digital-platform behaviour and misleading environmental claims will continue to attract the fastest escalation paths in 2026.

Practitioner tip: Map the ACCC’s published priorities against your own business activities early. If the investigation topic aligns with a stated priority, plan for a longer, more resource-intensive engagement.

How to Respond to an ACCC Investigation in Australia: Compliance Decisions, Comply, Seek Variance or Refuse

Once a section 155 notice is received, the recipient faces a decision tree with four practical branches. Choosing the wrong path, or choosing too slowly, creates criminal exposure.

• Full compliance by the stated deadline. This is the default obligation. Gather all responsive documents, complete any required written answers and produce them in the form requested. Full, timely compliance is the single strongest signal of good faith.
• Seek a short variance or extension of time. If the volume of responsive material is large or custodians are geographically dispersed, contact the ACCC promptly to request an extension. The ACCC’s guidelines indicate a willingness to negotiate reasonable extensions provided the request is made before the deadline expires and is supported by a genuine explanation.
• Apply for modification of scope through negotiation or court. Where the notice is unreasonably broad or captures clearly irrelevant material, the recipient may negotiate a narrower scope with the ACCC or, in rare cases, apply to the Federal Court for a modification. Court applications are uncommon and carry strategic risk.
• Refuse to comply (limited grounds only). Outright refusal is almost never appropriate. The only recognised grounds are legal professional privilege (which must be specifically claimed and documented) and, in limited circumstances, the privilege against self-incrimination for oral examinations. Unjustified refusal is a criminal offence.

Making Formal Objections, Legal Grounds

A formal objection to a section 155 notice must be precise and legally grounded. The objection should identify each document or category of information to which privilege or another protection is claimed, state the legal basis, and offer a process for resolving the dispute (such as an independent review or production of a privilege log). Vague or blanket objections are treated unfavourably and can undermine the company’s credibility with the Commission. Practitioners responding by email should ensure the objection is drafted by external competition counsel and not by the business team directly, this is a critical point for those considering how to respond to an ACCC investigation via email.

Privilege Playbook, Preserving Legal Professional Privilege and Other Protections

Privilege is the most powerful shield available in response to a section 155 notice, but it is also the most frequently mishandled. A poorly executed privilege claim can result in waiver, adverse inferences and reputational damage with the regulator.

• Legal professional privilege (LPP). Applies to confidential communications made for the dominant purpose of obtaining or providing legal advice, or for use in existing or reasonably anticipated litigation. Both external and in-house counsel communications may attract LPP, though in-house claims face greater scrutiny.
• Common-interest privilege. Where two or more parties share a common interest in legal advice (for example, a parent company and a subsidiary), communications between them may be protected, provided the common-interest arrangement is documented in advance.
• Privilege against self-incrimination. Available to individuals (not corporations) in oral examinations, though the CCA provides a use-immunity framework that limits the protection.

Preparing a Defensible Privilege Log

A privilege log is the documentary backbone of any privilege claim. It must be detailed enough for the ACCC (or a court) to assess the claim without accessing the privileged content. At a minimum, each entry should include the following fields:

• Document ID: Unique reference number for tracking.
• Date: Date of the communication or document.
• Author / sender: Name and role (e.g., “In-house counsel, Legal Department”).
• Recipient(s): Names and roles of all recipients, including any copied parties.
• Document type: Email, memorandum, file note, draft advice, etc.
• Privilege type claimed: LPP, advice; LPP, litigation; common-interest; self-incrimination.
• Brief description of subject matter: Sufficient to identify the topic without revealing privileged content (e.g., “Advice regarding proposed pricing methodology”).

When Privilege May Be Lost

Privilege is fragile. Common scenarios in which privilege is waived or lost during an ACCC investigation include:

• Disclosure of privileged material to a third party outside the privilege relationship without a documented common-interest agreement.
• Forwarding legal advice to operational staff “for information” rather than for the purpose of seeking or giving legal advice.
• Mixing legal and commercial content in the same communication, such that the dominant purpose of the document is no longer the provision of legal advice.
• Failure to assert privilege at the time of production, once produced without objection, clawback is extremely difficult.

Practitioner tip: Implement a privilege-tagging protocol on the day the notice is received. Every responsive document should be reviewed by a qualified lawyer before any production occurs.

Document Production for an ACCC Section 155 Notice: Scope, Format, Search and Custodians

Effective document production is where legal obligations meet operational logistics. The scope of a section 155 notice is typically broad, and the ACCC expects comprehensive, good-faith searches.

• Define custodians: Identify all individuals whose files, devices and accounts are likely to contain responsive material. Include former employees and contractors where access to their records remains available.
• Set search parameters: Agree on date ranges, keyword lists and file types. Where the ACCC has not specified parameters, propose reasonable ones in writing and seek the Commission’s agreement.
• Preserve metadata: Produce documents in native format with metadata intact unless the notice specifies otherwise. Altered or stripped metadata can raise spoliation concerns.
• Maintain chain of custody: Record who collected each document, when, from which system and in what format. This log protects against later challenges to completeness or authenticity.

E-Discovery Practical Checklist

Businesses operating in New South Wales should also be aware that state-level agencies, including NSW Fair Trading, may coordinate with the ACCC or conduct parallel inquiries. Understanding how to respond to an ACCC investigation in NSW therefore requires attention to both Commonwealth and state regulatory channels.

Cooperating With the ACCC: Strategy and Internal Communications

Cooperation is not the same as capitulation. A well-managed cooperation strategy can reduce regulatory friction, narrow the scope of the investigation and position the company favourably if the matter proceeds to enforcement.

• Engage early and constructively. Respond to informal ACCC requests promptly, even before a section 155 notice is issued. Early engagement signals good faith and may forestall the need for compulsory powers.
• Control the narrative internally. Brief the board, management team and relevant staff through a single authorised channel. Inconsistent messaging, particularly in writing, creates discoverable material that may be unhelpful.
• Document cooperation. Maintain a log of every communication with the ACCC: date, participants, substance and any agreed actions. This record is invaluable if the company later needs to demonstrate cooperation to a court or tribunal.
• Limit voluntary disclosure to what is legally required or strategically beneficial. Not every piece of information needs to be volunteered. External counsel should review all proposed voluntary disclosures before they are made.

When to Escalate to the Board

Board-level notification should be triggered when any of the following criteria are met:

• The investigation concerns conduct that could attract pecuniary penalties above the company’s materiality threshold.
• A director or senior officer is personally named in a notice or is the subject of potential enforcement action.
• The investigation may trigger continuous-disclosure obligations under the ASX Listing Rules.
• The company is considering whether to seek an enforceable undertaking or enter into settlement discussions.

Practitioner tip: Prepare a standing board-briefing template covering the nature of the investigation, current status, legal exposure range, estimated costs and recommended next steps. Update it at each board meeting until the matter closes.

ACCC Penalties for Non-Compliance: Criminal Exposure and Director Risk

The consequences of failing to comply with a section 155 notice are severe. Non-compliance is a criminal offence under the CCA, and both individuals and corporations face significant sanctions.

• Criminal penalties (individuals): Individuals who refuse or fail to comply with a section 155 notice without reasonable excuse can face fines and, in limited circumstances, imprisonment. The privilege against self-incrimination provides only narrow protection and does not excuse a failure to produce documents.
• Criminal penalties (corporations): Companies that fail to comply also face criminal fines. The quantum of fines is set by the CCA and is updated periodically, always verify current amounts against the ACCC’s published fines-and-penalties guidance.
• Civil pecuniary penalties for substantive breaches: Where the investigation itself establishes a contravention of the CCA (such as cartel conduct, misuse of market power or misleading conduct), the civil penalties can be orders of magnitude greater than the penalties for non-compliance with s.155.

Director Duty Considerations and Safe Steps

Directors owe duties of care and diligence under the Corporations Act 2001. Failing to ensure the company complies with a section 155 notice, or failing to implement adequate systems for document preservation and regulatory response, can expose directors to personal liability. Industry observers expect that director accountability for regulatory-response failures will continue to receive closer scrutiny from both the ACCC and ASIC in 2026.

• Ensure the company has a documented regulatory-response protocol before a notice arrives.
• Require management to report s.155 compliance progress to the board at each meeting.
• Obtain independent legal advice on personal exposure if a director is individually named.

Practical Templates and Appendices for Responding to an ACCC Investigation

Template 1, Email Triage Reply (For Initial Acknowledgement)

Subject: [Company Name], Acknowledgement of [ACCC Reference Number]

“We acknowledge receipt of the notice dated [date] bearing reference [number]. We have engaged external legal counsel and are taking immediate steps to identify and preserve responsive material. We anticipate being in a position to [produce responsive documents / provide information / confirm attendance] by [proposed date]. In the meantime, please direct all communications to [name, position, contact details]. We reserve all rights, including the right to claim legal professional privilege over specific documents.”

Template 2, Extension / Variance Request

Subject: Request for Extension of Time, [ACCC Reference Number]

“We refer to the section 155 notice dated [date]. The volume of potentially responsive material across [number] custodians and [number] systems is substantial. We are conducting searches in good faith and request an extension of [number] business days, to [proposed new date], to complete our review and privilege assessment. We are happy to discuss the scope of searches undertaken to date and to provide interim production of material already reviewed. Please confirm whether this extension is acceptable.”

Template 3, Skeleton Privilege Log

Conclusion, A Board-Ready Approach to Responding to an ACCC Investigation in Australia

Knowing how to respond to an ACCC investigation in Australia is ultimately about preparation, speed and discipline. The companies that manage these processes well are those that have a regulatory-response protocol in place before the notice arrives, engage experienced competition lawyers within hours, preserve documents immediately and maintain a clear internal-communications plan throughout. The penalties for non-compliance are criminal, privilege is available but must be earned through rigorous process, and cooperation, when strategically deployed, can meaningfully shape the outcome. Boards that treat an ACCC investigation as a governance event, rather than a purely legal one, consistently achieve better results.

Sources

1. ACCC, Guidelines: Use of Section 155 Powers
2. ACCC, Investigative Stages and Timeframes
3. ACCC, Fines and Penalties
4. Lexology, Practical Tips on Section 155
5. Jones Day, ACCC Guidance on Its Information Gathering
6. DW Fox Tucker, ACCC Investigations in Australia 2026: A Practical Playbook for Businesses