Searches by the Commerce Commission
SEARCHES BY THE COMMERCE COMMISSION
The Commerce Commission (CC) investigates possible breaches of New Zealand’s consumer protection legislation (such as the Commerce Act 1986 and the Fair Trading Act 1986). This note explains what to do if the CC tries to execute at your premises a search warrant issued under section 98A of the Commerce Act 1986.
BEFORE THE SEARCH
- Ask the lead CC officer for identification, and a copy of the search warrant.
- Advise senior management.
- Seek legal advice (including as to the validity of the search warrant).
- Instruct your team members to co-operate with the CC officers executing the search. Anyone who resists, obstructs or delays the search could face a fine of up to $10,000.
DURING THE SEARCH
- Try to foster a co-operative working relationship with the CC officers.
- Bear in mind that the CC officers may:
- Use reasonable force to carry out the search and any lawful seizure
- Seize anything that is the subject of the search, or may otherwise be lawfully seized
- Access any computer or other device, or require any person to help them do so
- Take copies of any documents that may be lawfully seized (e.g. by cloning devices)
- Take photographs, sound or video recordings
- Be aware that, a search warrant does not permit the CC officers to:
- Arrest any person, or require them to answer any substantive questions
- Search any area not specified in the search warrant
- Seize any irrelevant or privileged material other than in accordance with conditions set out in the search warrant (e.g. that the material be placed in a sealed envelope pending determination of claims to privilege)
- Assign a team member to assist each of the CC officers, and take notes (especially in relation to any searching or cloning of computers or other devices).
AFTER THE SEARCH
- Exchange contact details with the lead CC officer.
- Ask the lead CC officer to provide an inventory of any documents or other things seized.
- Tell the lead CC officer which materials you regard as privileged.
- Prepare a note of the events. Mark it “LEGALLY PRIVILEGED AND CONFIDENTIAL”.
- Consider your other obligations (e.g. advise the NZX, contact clients, notify insurers, issue a press release, convene a board meeting, or commence your own investigation).
- Seek legal advice about follow-up steps (e.g. challenge the search warrant, resolve privilege claims, return documents or things seized, or seek further details).
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