The Construction of s 155(1) of the TP Act
47 The power conferred by s 155(1) of the TP Act is conditioned (relevantly) on:
(i) the Chairperson of the ACCC having reason to believe that a person is capable of providing information
(ii) relating to a matter that constitutes or may constitute a contravention of the TP Act.
If these preconditions are satisfied, subject to any other requirements that may be read into s 155(1), the Chairperson may require the person concerned to furnish that information.
48 Section 155(1) of the TP Act has been said to provide the ACCC (as it is now called) with a 'powerful investigative tool': SA Brewing Holdings Ltd v Baxt (1989) 23 FCR 357, at 359, per Fisher and French JJ. However, the power conferred on the ACCC and its officers is given for the purpose of enabling the ACCC to perform its functions under the TP Act: Riley McKay Pty Ltd v Bannerman, at 566, per Bowen CJ; WA Pines Pty Ltd v Bannerman (1980) 41 FLR 175, 187, per Lockhart J. This qualification receives support both from the language of s 155(1), considered in its context, and from the principle that statutory provisions are not to be construed as abrogating important common law rights or immunities in the absence of clear words or necessary implication: The Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543, at 553 [11], per Gleeson CJ, Gaudron, Gummow and Hayne JJ.
49 The authorities have established a number of propositions concerning the interpretation of s 155(1) of the TP Act. They include the following:
(i) In a context where refusal or failure to comply with a s 155 notice is punishable by imprisonment or fine, the notice must:
(a) convey with reasonable clarity to the recipient the information that must be furnished; and
(b) disclose that the ACCC is entitled to require the recipient to furnish the specified information:
Pyneboard Pty Ltd v Trade Practices Commission (1982) 57 FLR 368, at 374, per curiam.
(ii) The second of these requirements will not be satisfied unless it appears from the notice that the information sought is information 'relating' to one or more 'matters' of a kind described in s 155(1): Pyneboard v TPC, at 375; SABrewing v Baxt, at 369-370; Bannerman v Mildura Fruit Juices Pty Ltd (1984) 2 FCR 581, at 584, per Bowen CJ and Neaves J. However, the question whether a notice discloses the necessary 'relatedness' is not to be approached in an 'over-technical or hypercritical way': Pyneboard v TPC, at 376. Moreover, the 'relatedness' is to a proper inquiry into the suspected offences: Panelboard Pty Ltd v Trade Practices Commission (1981) 59 FLR 395, at 407, per Fox J.
(iii) Section 155(1) does not require the Chairperson of the ACCC to have 'reason to believe' that a specified matter constitutes or may constitute a contravention of the TP Act. The Chairperson must, however, have reason to believe that the relevant person is capable of furnishing information relating to the matter specified in the notice: WA Pines v Bannerman, at 179, per Brennan J (with whom Bowen CJ agreed); TNT Australia Pty Ltd v Fels [1992] ATPR 41-190, at 40,598-40,599, per Gummow J. It follows that the Chairperson or other officer must believe that the person to whom the notice is directed is capable of furnishing information relating to the facts known or suspected: WA Pines v Bannerman, at 180. In addition, there must be facts in existence which are sufficient to induce that belief in a reasonable person: George v Rockett, at 112.
(iv) The word 'matter' in s 155(1) is to be construed in its ordinary sense of an affair or thing: Melbourne Home of Ford Pty Ltd v Trade Practices Commission (1979) 36 FLR 450, at 474, per Franki and Northrop JJ; SA Brewing v Baxt, at 369. It refers to a body of facts which constitutes or may constitute a contravention of the TP Act. Whether or not the relevant body of facts constitutes a contravention is a matter of law and does not turn on the perception or knowledge of the ACCC or its officers: WA Pines v Bannerman, at 179.
(v) When s 155(1) speaks of a matter which may constitute a contravention, it refers to a body of facts not fully known and which may, when fully known, reveal themselves as constituting a contravention: WA Pines v Bannerman, at 179. The words 'may constitute' enable a court to judge from the material in the notice whether, if other facts which may or may not have occurred come to light, the whole body of facts would constitute a contravention: SA Brewing v Baxt, at 370. It is not necessary for the court to determine whether a contravention has occurred; but equally it will not 'idly speculate' or 'draw on improbable circumstances' to uphold a Notice: SA Brewing v Baxt, at 370. An alternative formulation is that the court can take account of facts which may 'reasonably be suspected' to have occurred: WA Pines v Bannerman, at 179.
(vi) Where the matter referred to in the notice, after allowing for undiscovered facts, is incapable of amounting to a contravention, the issue of the notice is not a valid exercise of the power conferred by s 155(1): SA Brewing v Baxt, at 371-372.
(vii) In view of the principle that a court should not adopt an 'over-technical or hypercritical approach' to the construction of a notice, there is no requirement that the notice 'plead' all the facts necessary to constitute a contravention or possible contravention of the TP Act: SA Brewing v Baxt, at 370.
(viii) Information which tends to negative a suspected contravention or liability to conviction or which tends to exculpate a person suspected to be a party to a contravention, is within the ambit of s 155(1). It follows that an inquiry under s 155 may relate to a defence or possible defence available to the suspected person: WA Pines v Bannerman, at 180.