MOU with ACCC — exchange of information

Memorandum of Understanding (MOU) for the exchange of information relating to entities and issues of mutual interest between:

The Australian Competition and Consumer Commission 

and

The Office of the Australian Information Commissioner 

August 2020

1. Parties to the MoU

1.1. The Parties to this Memorandum of Understanding (MoU) are the Australian Competition and Consumer Commission (the ACCC) and the Office of the Australian Information Commissioner (the OAIC) (together the Parties). In this MoU, the term ‘Party’ will mean either the ACCC or the OAIC, as the context allows.

1.2.        The ACCC is an independent Commonwealth statutory authority established under the Competition and Consumer Act 2010 (Cth) (CCA), responsible for enforcing consumer protection and fair trading laws and for promoting competition.

1.3.        The OAIC is an independent Commonwealth statutory agency established under the Australian Information Commissioner Act 2010 (Cth) (AIC Act), responsible for regulating privacy law and freedom of information law.

1.4.        Each Party acknowledges that carrying out its respective roles will require effective consultation and cooperation with the other Party, and each Party is committed to ensuring such consultation and cooperation occurs.

2. Purpose

2.1.       This MoU states the mutual understanding of, and principles that underpin, the working relationship between the Parties.

2.2.        The purpose of this MoU is to:

  1. guide and facilitate the Parties’ collaboration, cooperation and mutual assistance in the performance of their respective statutory functions;
  2. provide transparency about the Parties’ efforts to coordinate activities and minimise duplication within the limitations placed on each by law; and
  3. allow for the exchange of relevant information and documents to the extent permitted by relevant legislation.

2.3.            The Parties recognise the need for, and will use best efforts to give effect to, these purposes through active collaboration and cooperation, and the ability of both Parties to effectively discharge their respective statutory functions and objectives.

3. Scope

3.1.       This MoU concerns the exchange of information that either the ACCC or OAIC may gather in relation to any of their respective statutory responsibilities, except for responsibilities specifically covered by the Consumer Data Right (CDR) MoU.

3.2.        This MoU does not create any enforceable rights or impose any legally binding obligations on either Party.

3.3.       The MoU is not intended to be exhaustive in the subject matters within its scope. The Parties may enter into any other arrangements for cooperation and collaboration to the full extent permitted by the law.

3.4.       Nothing in this MoU affects the exercise of the legislative functions, powers or responsibilities of either Party.

4. Sharing of information

4.1.       The Parties may share information that is not protected or personal information, at the providing Party’s discretion. The Parties may choose to share information when a Party is reasonably of the view that the information is likely to assist the other Party in performing its functions and meeting its objectives.

4.2.       New requests for information between the Parties should initially be made in writing via the liaison contact officers named at Appendix A.

The process for sharing ACCC protected information

4.3.       Protected information is defined in s.155AAA(21) of the CCA. It includes, but is not limited to, information that was given in confidence to the ACCC, or obtained by the ACCC under its s.155 compulsory information gathering powers.

4.4.       Information obtained under s.95ZK of the CCA is not protected information covered by s.155AAA and is information that cannot be shared with the OAIC without the consent of the party who provided it.

4.5.       Section 155AAA(12) of the CCA allows the ACCC to disclose protected information to identified agencies, bodies or persons if the ACCC Chair is satisfied it will enable or assist in the exercise of their functions or powers. The OAIC is an identified agency under the CCA (see s.155AAA(12)(g)).

4.6.       The disclosure of protected information in accordance with s.155AAA is at the discretion of the ACCC Chair.

4.7.       When requesting access to protected information, the OAIC must provide the ACCC with adequate detail to assist the Chair make a decision whether disclosure of the protected information sought will enable or assist the OAIC in the performance or exercise of its functions or powers.

4.8.       The ACCC may require additional information from the OIAC to assist the Chair’s consideration of a request made under s.155AAA(12)(g). The OAIC will provide additional information for this purpose as required.

4.9.       Following the receipt of a request for access to protected information, the ACCC will prepare an internal brief to the Chair in accordance with its internal processes.

4.10.    In considering requests under s.155AAA, the Chair will consider whether the principles of natural justice require the party with whom the information is concerned be given an opportunity to be heard.

4.11.    The Chair may, in writing, impose conditions to be complied with in relation to protected information disclosed under s.155AAA(12).

The process for sharing permitted information under the AIC Act

4.12.    S.29 of the AIC Act states that the OAIC cannot share information gathered in the course of performing its functions or exercising its powers, in most circumstances.

4.13.    To the extent permitted by law, the OAIC intends to share information allowed under the exception in s.29(2) to assist the OAIC and the ACCC in the performance of duties or functions, or the exercise of powers on matters of shared interest.

5. Confidentiality

5.1.       The Parties will ensure that requests for exchange, and the provision, of information between them accord with the exercise of their respective powers and functions including compliance with:

  • the authorised disclosure provisions under their respective enabling legislation; and
  • other applicable laws including the Privacy Act 1988.

5.2.       A recipient agency will take all reasonable measures to protect all information received under this MoU from unauthorised use or disclosure. It will keep the information secure and confidential in accordance with all applicable statutory obligations on either agency or both agencies (as advised by the providing agency).

5.3.       If the recipient agency intends to disclose information received under this MoU to any third-party government agency, it will give the providing agency an opportunity to make any submissions on the matter:

  • in its initial request to the providing agency for the information, where practicable; and
  • prior to any such disclosure.

5.4.       If information provided under this MoU becomes the subject of a subpoena, freedom of information request, or other legal demand for access, the recipient agency will notify the providing agency and endeavour to ensure the providing agency has sufficient time to advise on any intended action relating to the release, disclosure, publication or production of such information.

5.5.       If information provided under this MoU becomes the subject of any inadvertent or unauthorised disclosure, the recipient agency will as soon as practicable notify the providing agency of the details, in addition to any legal obligations the recipient agency may have in relation to the matter.

6. Liaison

6.1.       The Parties will hold regular liaison meetings and establish direct lines of communication for this purpose.

6.2.       The liaison contact officers at the time of signing the MoU are listed at Appendix A. 

6.3.       Initial contact on new issues should be via the liaison officers and ongoing contact should include the liaison officer to facilitate consistency across the engagement.

6.4.       The Parties will liaise as necessary to progress matters of mutual interest, to improve the efficiency and effectiveness of information sharing allowed by law, and to identify and discuss opportunities for joint compliance, enforcement, education and/or training activities.

6.5.       The Parties agree that, where appropriate and timetables allow, they may discuss with each other publication and stakeholder communication on key matters of mutual interest.

7. Collaboration

7.1.       The areas of collaboration and information exchange under this MoU include, but are not limited to, mutual assistance, joint action and/or exchange of information concerning:

  1. ACCC’s powers and functions under the CCA and other legislation it is responsible for administering; and
  2. OAIC’s powers and functions under the AIC Act, and (relevantly) the Privacy Act 1988, as well as other related legislation, regulations and guidelines.

7.2.       The Parties may facilitate their collaboration through any appropriate arrangements, including:

  1. referral of a matter by a Party where both Parties agree the matter more appropriately falls within the jurisdiction of the other Party;
  2. temporary secondments and/or exchange of staff to facilitate a transfer of expertise and skills; and/or
  3. provision of joint training, or an invitation to participate in training conducted or facilitated by a Party that may be relevant to the other Party.

8. Review and amendment of MoU

8.1.       The Parties may review the operation of the MoU on a periodic basis and will consult with each other with a view to improving its operation where necessary. Any term of this MoU may be amended at any time with the mutual written consent of each Party.

9. Termination of MoU

9.1.       Either Party may terminate this MoU by giving at least 30 days written notice to the other Party. The termination will take effect on the date that is 30 days after the notice is sent, unless otherwise agreed, in writing, between the Parties.

10. Costs

10.1. Each Party agrees to bear its own costs in performing its functions under this MoU.

11. Publication of MoU

11.1. The Parties agree that this MoU may be publicised as each Party considers appropriate including by placing it on the Party's website.

 

Schedule 1 – Execution

 

Signatories:

For the Australian Competition and Consumer Commission

Rod Simms
Chair
[Signed]
Date: 11/8/2020

 

For the Office of the Australian Information Commissioner

Angelene Falk
Australian Information Commissioner and Privacy Commissioner
[Signed]
Date: 7/8/2020

Appendix A - MoU Liaison Officers

ACCC primary liaison contact officer

Deputy General Manager, Enforcement Coordination & Strategy, Enforcement Division

ACCC secondary liaison contact officer

Senior Administration Coordinator, Enforcement Coordination & Strategy, Enforcement Division.

ACCC senior officer with responsibility for MoU

Executive General Manager, Enforcement Division 

OAIC primary liaison contact officer

Sophie Higgins, Director, Dispute Resolution Branch 

OAIC secondary liaison contact officer

David Stevens, Assistant Commissioner, Dispute Resolution, Investigations & Review

OAIC senior officer with responsibility for MoU

Elizabeth Hampton, Deputy Commissioner