Daniels Corp & Anor v Australian Competition and Consumer Commission, Woolworths & Coles v Fels

The High Court of Australia considered appeals by Daniels Corporation Pty Ltd and others (Daniels Corp) and by Woolworths Limited and Coles Myer Ltd (Woolworths & Coles) against decisions of the Federal Court of Australia. The Australian Competition and Consumer Commission (ACCC) was the respondent in both appeals. The dispute concerned the ACCC's investigations into alleged contraventions of the *Trade Practices Act 1974* (Cth) (the Act) by Daniels Corp and Woolworths & Coles, and the ACCC's subsequent use of its coercive powers under section 155 of the Act to obtain information.

The central legal issue before the High Court was whether the ACCC's power to require a person to attend before it and answer questions under section 155(1) of the Act was limited by the privilege against self-incrimination. Specifically, the court had to determine if the privilege could be invoked to refuse to answer questions or produce documents, notwithstanding the potential for such answers or documents to incriminate the person in criminal proceedings. A related issue concerned the scope of the ACCC's power to issue notices under section 155.

Gaudron and Gummow JJ held that the privilege against self-incrimination, a fundamental common law right, was not abrogated by section 155 of the Act. Their Honours reasoned that while the Act conferred broad investigative powers on the ACCC, it did not expressly or by necessary implication remove the privilege. The court affirmed that the privilege protects individuals from being compelled to provide evidence that could expose them to criminal liability. Consequently, the ACCC could not compel a person to answer questions or produce documents if doing so would tend to incriminate them.

The High Court allowed the appeals in part, finding that the ACCC's section 155 notices were not invalid. However, it was held that the privilege against self-incrimination could be invoked by the recipients of those notices. The court therefore set aside the orders of the Federal Court that had compelled the appellants to answer questions and produce documents without reservation.