TREATIES AND OTHER INTERNATIONAL ACTS SERIES 13033 

________________________________________________________________________ 

TRADE 

Antitrust

 Agreement Between the 

UNITED STATES OF AMERICA 

and AUSTRALIA 

Signed at Washington April 27, 1999 

 with 

Annex 
 NOTE BY THE DEPARTMENT OF STATE 

 Pursuant to Public Law 89—497, approved July 8, 1966 

(80 Stat. 271; 1 U.S.C. 113)—

“. . .the Treaties and Other International Acts Series issued 

under the authority of the Secretary of State shall be competent 

 evidence . . . of the treaties, international agreements other than 

treaties, and proclamations by the President of such treaties and 

international agreements other than treaties, as the case may be, 

therein contained, in all the courts of law and equity and of maritime 

jurisdiction, and in all the tribunals and public offices of the 

United States, and of the several States, without any further proof 

or authentication thereof.” 
 AUSTRALIA 

 Trade: Antitrust 

Agreement signed at Washington April 27, 1999; 

Entered into force November 5, 1999. 

With annex. 
AGREEMENT BETWEEN

THE GOVERNMENT OF THE UNITED STATES OF AMERICA

AND

THE GOVERNMENT OF AUSTRALIA

ON MUTUAL ANTITRUST ENFORCEMENT ASSISTANCE

The Government of the United States of America and the Government of Australia

(individually a "Party" or collectively the "Parties"), desiring to improve the effectiveness of the

enforcement of the antitrust laws of both countries through cooperation and mutual legal

assistance on a reciprocal basis, hereby agree as follows:
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ARTICLE I

DEFINITIONS

Antitrust Authority - refers, in the case of the United States, to the United States Department

of Justice or the United States Federal Trade Commission. In the case of Australia, the term

refers to the Australian Competition and Consumer Commission.

Antitrust Evidence - refers to information, testimony, statements, documents or copies thereof,

or other things that are obtained, in anticipation of, or during the course of, an investigation or

proceeding under the Parties' respective antitrust laws, or pursuant to the Parties' Mutual

Assistance Legislation.

Antitrust Laws - refers, in the case of the United States, to the laws enumerated in subsection

(a) of the first section of the Clayton Act, 15 U.S.C. 12(a), and to Section 5 of the Federal

Trade Commission Act, 15 U.S.C. 45, to the extent that such Section 5 applies to unfair

methods of competition. In the case of Australia, the term refers to Part IV of the Trade

Practices Act 1974; other provisions of that Act except Part X in so far as they relate to Part

IV; Regulations made under that Act in so far as they relate to Part IV, except Regulations to

the extent that they relate to Part X; and the Competition Code of the Australian States and

Territories.

Central Authority - refers, in the case of the United States, to the Attorney General (or a

person designated by the Attorney General), in consultation with the U.S. Federal Trade

Commission. In the case of Australia, the term refers to the Australian Competition and

Consumer Commission, in consultation with the Attorney General's Department.

Executing Authority - refers, in the case of the United States, to the Antitrust Authority

designated to execute a particular request on behalf of a Party. In the case of Australia, the

term includes the Australian Competition and Consumer Commission and the Attorney

General's Department.

Mutual Assistance Legislation - refers, in the case of the United States, to the International

Antitrust Enforcement Assistance Act of 1994, 15 U.S.C. 6201-6212, Public Law No. 103-

438, 108 Stat. 4597. In the case of Australia, the term refers to the Mutual Assistance in

Business Regulation Act 1992 and the Mutual Assistance in Criminal Matters Act 1987, and

Regulations made pursuant to those Acts.

Person or Persons - refers to any natural person or legal entity, including corporations,

unincorporated associations, partnerships, or bodies corporate existing under or authorized by

the laws of either the United States, its States, or its Territories, the laws of Australia, its

States, or its Territories, or the laws of other sovereign states.

Request - refers to a request for assistance under this Agreement.

Requested Party - refers to the Party from which assistance is sought under this Agreement, or

which has provided such assistance.

Requesting Party - refers to the Party seeking or receiving assistance under this Agreement.

ARTICLE II

OBJECT AND SCOPE OF ASSISTANCE

A. The Parties intend to assist one another and to cooperate on a reciprocal basis in

providing or obtaining antitrust evidence that may assist in determining whether a person has
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violated, or is about to violate, their respective antitrust laws, or in facilitating the

administration or enforcement of such antitrust laws.

B. Each Party's Antitrust Authorities shall, to the extent compatible with that Party's laws,

enforcement policies, and other important interests, inform the other Party's Antitrust

Authorities about activities that appear to be anticompetitive and that may be relevant to, or

may warrant, enforcement activity by the other Party's Antitrust Authorities.

C. Each Party's Antitrust Authorities shall, to the extent compatible with that Party's laws,

enforcement policies, and other important interests, inform the other Party's Antitrust

Authorities about investigative or enforcement activities taken pursuant to assistance provided

under this Agreement that may affect the important interests of the other Party.

D. Nothing in this Agreement shall require the Parties or their respective Antitrust

Authorities to take any action inconsistent with their respective Mutual Assistance Legislation.

E. Assistance contemplated by this Agreement includes but is not limited to:

1. disclosing, providing, exchanging, or discussing antitrust evidence in the

possession of an Antitrust Authority;

2. obtaining antitrust evidence at the request of an Antitrust Authority of the

other Party, including

(a) taking the testimony or statements of persons or otherwise obtaining

information from persons,

(b) obtaining documents, records, or other forms of documentary evidence,

(c) locating or identifying persons or things, and

(d) executing searches and seizures, and disclosing, providing, exchanging,

or discussing such evidence; and

3. providing copies of publicly available records, including documents or

information in any form, in the possession of government departments and

agencies of the national government of the Requested Party.

F. Assistance may be provided whether or not the conduct underlying a request would

constitute a violation of the antitrust laws of the Requested Party.

G. Nothing in this Agreement shall prevent a Party from seeking assistance from or

providing assistance to the other pursuant to other agreements, treaties, arrangements, or

practices, including the Agreement Between the Government of Australia and the Government

of the United States of America Relating to Cooperation on Antitrust Matters of June 29,

1982, either in place of or in conjunction with assistance provided pursuant to this Agreement.

H. Except as provided by paragraphs C and D of Article VII, this Agreement shall be used

solely for the purpose of mutual antitrust enforcement assistance between the Parties. The

provisions of this Agreement shall not give rise to a right on the part of any private person to

obtain, suppress, or exclude any evidence, or to impede the execution of a request made

pursuant to this Agreement.

I. Nothing in this Agreement compels a person to provide antitrust evidence in violation

of any legally applicable right or privilege.
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J. Nothing in this Agreement affects the right of an Antitrust Authority of one Party to

seek antitrust evidence on a voluntary basis from a person located in the territory of the other

Party, nor does anything in this Agreement preclude any such person from voluntarily

providing antitrust evidence to an Antitrust Authority.

ARTICLE III

REQUESTS FOR ASSISTANCE

A. Requests for assistance under this Agreement shall be made by an Antitrust Authority

of the Requesting Party. Such requests shall be made in writing and directed to the Central

Authority of the Requested Party. With respect to the United States, the Attorney General,

acting as the Central Authority, will upon receipt forward a copy of each request to the Federal

Trade Commission.

B. Requests shall include, without limitation:

1. A general description of the subject matter and nature of the investigation or.

proceeding to which the request relates, including identification of the persons

subject to the investigation or proceeding and citations to the specific antitrust

laws involved giving rise to the investigation or proceeding; such description

shall include information sufficient to explain how the subject matter of the

request concerns a possible violation of the antitrust laws in question;

2. The purpose for which the antitrust evidence, information, or other assistance is

sought and its relevance to the investigation or proceeding to which the request

relates. A request by the United States shall state either that the request is not

made for the purpose of any criminal proceedings or that the request is made

for a purpose that includes possible criminal proceedings. In the former case,

the request shall contain a written assurance that antitrust evidence obtained

pursuant to the request shall not be used for the purposes of criminal

proceedings, unless such use is subsequently authorized pursuant to Article VII.

In the latter case, the request shall indicate the relevant provisions of law under

which criminal proceedings may be brought;

3. A description of the antitrust evidence, information, or other assistance sought,

including, where applicable and to the extent necessary and possible:

(a) the identity and location of any person from whom evidence is sought,

and a description of that person's relationship to the investigation or

proceeding which is the subject of the request;

(b) a list of questions to be asked of a witness;

(c) a description of documentary evidence requested; and

(d) with respect to searches and seizures, a precise description of the place

or person to be searched and of the antitrust evidence to be seized, and

information justifying such search and seizure under the laws of the

Requested Party;

4. Where applicable, a description of procedural or evidentiary requirements

bearing on the manner in which the Requesting Party desires the request to be

executed, which may include requirements relating to:
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(a) the manner in which any testimony or statement is to be taken or

recorded, including the participation of counsel;

(b) the administration of oaths;

(c) any legal privileges that may be invoked under the law of the Requesting

Party that the Requesting Party wishes the Executing Authority to

respect in executing the request, together with an explanation of the

desired method of taking the testimony or provision of evidence to

which such privileges may apply; and

(d) the authentication of public records;

5. The desired time period for a response to the request;

6. Requirements, if any, for confidential treatment of the request or its contents;

and

7. A statement disclosing whether the Requesting Party holds any proprietary

interest that could benefit or otherwise be affected by assistance provided in

response to the request; and

8. Any other information that may facilitate review or execution of a request.

C. Requests shall be accompanied by written assurances of the relevant Antitrust

Authority that there have been no significant modifications to the confidentiality laws and

procedures described in Annex A hereto.

D. An Antitrust Authority may modify or supplement a request prior to its execution if the

Requested Party agrees.

ARTICLE IV

LIMITATIONS ON ASSISTANCE

A. The Requested Party may deny assistance in whole or in part if that Party's Central

Authority or Executing Authority, as appropriate, determine that:

1. a request is not made in accordance with the provisions of this Agreement;

2. execution of a request would exceed the Executing Authority's reasonably

available resources;

3. execution of a request would not be authorized by the domestic law of the

Requested Party;

4. execution of a request would be contrary to the public interest of the Requested

Party.

B. Before denying a request, the Central Authority or the Executing Authority of the

Requested Party, as appropriate, shall consult with the Central Authority of the Requesting

Party and the. Antitrust Authority that made the request to determine whether assistance may

be given in whole or in part, subject to specified terms and conditions.
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C. If a request is denied in whole or in part, the Central Authority or the Executing

Authority of the Requested Party, as appropriate, shall promptly inform the Central Authority

of the Requesting Party and the Antitrust Authority that made the request and provide an

explanation of the basis for denial.

ARTICLE V

EXECUTION OF REQUESTS

A. After receiving a request, the Central Authority shall promptly provide the Requesting

Party an initial response that includes, when applicable, an identification of the Executing

Authority (Authorities) for the Request.

B. The Central Authority of the United States, the Attorney General of Australia, or, once

designated, the Executing Authority of either Party may request additional information

concerning the request or may determine that the request will be executed only subject to

specified terms and conditions. Without limitation, such terms and conditions may relate to (1)

the manner or timing of the execution of the request, or (2) the use or disclosure of any

antitrust evidence provided. If the Requesting Party accepts assistance subject to such terms

and conditions, it shall comply with them.

C. A request shall be executed in accordance with the laws of the Requested Party. The

method of execution specified in the request shall be followed, unless it is prohibited by the law

of the Requested Party or unless the Executing Authority otherwise concludes, after

consultation with the Authority that made the request, that a different method of execution is

appropriate.

D. The Executing Authority shall, to the extent permitted by the laws and other important

interests of the Requested Party, facilitate the participation in the execution of a request of

such officials of the Requesting Party as are specified in the request.

ARTICLE VI

CONFIDENTIALITY

A. Except as otherwise provided by this paragraph and Article VII, each Party shall, to the

fullest extent possible consistent with that Party's laws, maintain the confidentiality of any

request and of any information communicated to it in confidence by the other Party under this

Agreement. In particular:

1. The Requesting Party may ask that assistance be provided in a manner that

maintains the confidentiality of a request and/or its contents. If a request

cannot be executed in that manner, the Requested Party shall so inform the

Requesting Party, which shall then determine the extent to which it wishes the

request to be executed; and

2. Antitrust evidence obtained pursuant to this Agreement shall be kept

confidential by both the Requesting Party and the Requested Party, except as

provided in paragraph E of this Article and Article VII.

Each Party shall oppose, to the fullest extent possible consistent with that Party's laws, any

application by a third party for disclosure of such confidential information.
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B. By entering into this Agreement, each Party confirms that:

1. The confidentiality of antitrust evidence obtained under this Agreement is

ensured by its national laws and procedures pertaining to the confidential

treatment of such evidence, and that such laws and procedures are set forth

in Annex A to this Agreement are sufficient to provide protection that is

adequate to maintain securely the confidentiality of antitrust evidence provided

under this Agreement; and

2. The Antitrust Authorities designated herein are themselves subject to the

confidentiality restrictions imposed by such laws and procedures.

C. Unauthorized or illegal disclosure or use of information communicated in confidence to

a Party pursuant to this Agreement shall be reported immediately to the Central Authority and

the Executing Authority of the Party that provided the information; the Central Authorities of

both Parties, together with the Executing Authority that provided the information, shall

promptly consult on steps to minimize any harm resulting from the disclosure and to ensure

that unauthorized or illegal disclosure or use of confidential information does not recur. The

Executing Authority that provided the information shall give notice of such unauthorized or

illegal disclosure or use to the person, if any, that provided such information to the Executing

Authority.

D. Unauthorized or illegal disclosure or use of information communicated in confidence

under this Agreement is a ground for termination of the Agreement by the affected Party, in

accordance with the procedures set out in Article XIII.C.

E. Nothing in this Agreement shall prevent disclosure, in an action or proceeding brought

by an Antitrust Authority of the Requesting Party for a violation of the antitrust laws of the

Requesting Party, of antitrust evidence provided hereunder to a defendant or respondent in

that action or proceeding, if such disclosure is required by the law of the Requesting Party.

The Requesting Party shall notify the Central Authority of the Requested Party and the

Executing Authority that provided the information at least ten days in advance of any such

proposed disclosure, or, if such notice cannot be given because of a court order, then as

promptly as possible.

ARTICLE VII

LIMITATIONS ON USE

A. Except as provided in paragraphs C and D of this Article, antitrust evidence obtained

pursuant to this Agreement shall be used or disclosed by the Requesting Party solely for the

purpose of administering or enforcing the antitrust laws of the Requesting Party.

B. Antitrust evidence obtained pursuant to this Agreement may be used or disclosed by a

Requesting Party to administer or enforce its antitrust laws only (1) in the investigation or

proceeding specified in the request in question and (2) for the purpose stated in the request,

unless the Executing Authority that provided such antitrust evidence has given its prior written

consent to a different use or disclosure; when the Requested Party is Australia, such consent

shall not be given until the Executing Authority has obtained any necessary approval from the

Attorney General.

C. Antitrust evidence obtained pursuant to this Agreement may be used or disclosed by a

Requesting Party with respect to the administration or enforcement of laws other than its

antitrust laws only if (1) such use or disclosure is essential to a significant law enforcement

objective and (2) the Executing Authority that provided such antitrust evidence has given its
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prior written consent to the proposed use or disclosure. In the case of the United States, the

Executing Authority shall provide such consent only after it has made the determinations

required for such consent by its mutual assistance legislation.

D.	Antitrust evidence obtained pursuant to this Agreement that has been made public

consistently with the terms of this Article may thereafter be used by the Requesting Party for

any purpose consistent with the Parties' mutual assistance legislation.

ARTICLE VIII

CHANGES IN APPLICABLE LAW

A. The Parties shall provide to each other prompt written notice of actions within their

respective States having the effect of significantly modifying their antitrust laws or the

confidentiality laws and procedures set out in Annex A to this Agreement.

B. In the event of a significant modification to a Party's antitrust laws or confidentiality.

laws and procedures set out in Annex A to this Agreement, the Parties shall promptly consult

to determine whether this Agreement or Annex A to this Agreement should be amended.

ARTICLE IX

TAKING OF TESTIMONY AND PRODUCTION OF DOCUMENTS

A. A person requested to testify and produce documents, records, or other articles

pursuant to this Agreement may be compelled to appear and testify and produce such

documents, records, and other articles, in accordance with the requirements of the laws of the

Requested Party. Every person whose attendance is required for the purpose of giving

testimony pursuant to this Agreement is entitled to such fees and allowances as may be

provided for by the law of the Requested Party.

B. Upon request by the Requesting Party, the Executing Authority shall furnish

information in advance about the date and place of the taking of testimony or the production of

evidence pursuant to this Agreement.

C. The Executing Authority shall, to the extent permitted by the laws and other important

interests of the Requested Party, permit the presence during the execution of the request of

persons specified in the request, and shall, to the extent permitted by the laws and other

important interests of the Requested Party, allow such persons to question the person giving

the testimony or providing the evidence.

D. The Executing Authority shall, to the extent permitted by the laws of the Requested

Party, comply with any instructions of the Requesting Party with respect to any claims of legal

privilege, immunity, or incapacity under the laws of the Requesting Party.

E. The Executing Authority shall, to the extent permitted by the laws of the Requested

Party, permit a person whose testimony is to be taken pursuant to this Article to have counsel

present during the testimony.

F. A Requesting Party may ask the Requested Party to facilitate the appearance in the

Requesting Party's territory of a person located in the territory of the Requested Party, for the

purpose of being interviewed or giving testimony. The Requesting Party shall indicate the

extent to which the person's expenses will be paid. Upon receiving such a request, the
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Executing Authority shall invite the person to appear before the appropriate authority in the

territory of the Requesting Party. The Executing Authority shall promptly inform the

Requesting Party of the person's response.

G. Antitrust evidence consisting of testimony or documentary evidence provided by the

Requested Party pursuant to this Agreement shall be authenticated in accordance with the

requirements of the law of the Requesting Party, in so far as such requirements would not

violate the laws of the Requested Party.

ARTICLE X

SEARCH AND SEIZURE

A. Where a request is to be executed by means of the search and seizure of antitrust

evidence, the request shall include such information as is necessary to justify such action under

the laws of the Requested Party. The Central Authorities shall confer, as needed, on

alternative, equally effective procedures for compelling or obtaining the antitrust evidence that

is the subject of a request.

B. Upon request, every official of a Requested Party who has custody of antitrust

evidence seized pursuant to this Agreement shall certify the continuity of custody, the identity

of the antitrust evidence, and the integrity of its condition; the Requested Party shall furnish

such certifications in the form specified by the Requesting Party.

ARTICLE XI

RETURN OF ANTITRUST EVIDENCE

At the conclusion of the investigation or proceeding specified in a request, the Central

Authority or the Antitrust Authority of the Requesting Party shall return to the Central

Authority or the Antitrust Authority of the Requested Party from which it obtained antitrust

evidence all such evidence obtained pursuant to the execution of a request under this

Agreement, along with all copies thereof, in the possession or control of the Central Authority

or Antitrust Authority of the Requesting Party; provided, however, that antitrust evidence that

has become evidence in the course of judicial or administrative proceedings or that has

properly entered the public domain is not subject to this requirement.

ARTICLE XII

COSTS

Unless otherwise agreed, the Requested Party shall pay all costs of executing a request, except

for the fees of expert witnesses, the costs of translation, interpretation, and transcription, and

the allowances and expenses related to travel to the territory of the Requested Party, pursuant

to Articles IX and X, by officials of the Requesting Party.

ARTICLE XIII

ENTRY INTO FORCE AND TERMINATION

A. This Agreement shall enter into force upon notification by each Party to the other

through diplomatic channels that it has completed its necessary internal procedures.
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B. Assistance under this Agreement shall be available in investigations or proceedings

under the Parties' antitrust laws concerning conduct or transactions occurring before as well as

after this Agreement enters into force.

C. As stated in Article VI.D of this Agreement, a Party may unilaterally elect to terminate

this Agreement upon the unauthorized or illegal disclosure or use of confidential antitrust

evidence provided hereunder; provided, however, that neither Party shall make such an

election until after it has consulted with the other Party, pursuant to Article VI.C, regarding

steps to minimize any harm resulting from the unauthorized or illegal disclosure or use of

information communicated in confidence under this Agreement, and steps to ensure that such

disclosure or use does not recur. Termination shall take effect immediately upon notice or at

such future date as may be determined by the terminating Party.

D. On termination of this Agreement, the Parties agree, subject to Article VI.E and

Article VII, to maintain the confidentiality of any request and information communicated to

them in confidence by the other Party under this Agreement prior to its termination; and to

return, in accordance with the terms of Article XI, any antitrust evidence obtained from the

other Party under this Agreement; provided, however, that any such request or information

that has become public in the course of public judicial or administrative proceedings is not

subject to this requirement.

E. In addition to the procedure set forth in paragraph C of this Article, either Party may

terminate this Agreement by means of written notice through diplomatic channels. Termination

shall take effect 30 days after the date of receipt of such notification.

IN WITNESS WHEREOF, the undersigned, being duly authorized by their respective

Governments, have signed this Agreement.

DONE at Washington, this twenty-seventh day of April, 1999, in duplicate, in the English

language, each text being equally authentic.

FOR THE GOVERNMENT OF

THE UNITED STATES OF AMERICA:

FOR THE GOVERNMENT OF

AUSTRALIA:
ANNEX A

This Annex cites and briefly describes the confidentiality laws and procedures that would

protect the confidentiality of antitrust evidence that may be provided under this Agreement.

Also included are laws and procedures that provide sanctions for breaches of the

confidentiality provisions described herein.

I. UNITED STATES OF AMERICA

A. Confidentiality Laws and Procedures

15 U.S.C. §§ 6201-6212, International Antitrust Enforcement Assistance Act

This statute authorizes the Department of Justice (DOJ) and the Federal Trade Commission

(FTC or, as used in this Part I, Commission) to enter into bilateral agreements with other

countries permitting mutual assistance in the enforcement of the antitrust laws. Specifically, it

permits DOJ and FTC to exchange certain otherwise confidential investigative information

with foreign antitrust authorities, where this will be in the public interest of the United States

and where it satisfies the important confidentiality and other safeguards outlined in the statute.

Section 6207(b) of the statute prohibits DOJ and FTC from disclosing, in violation of an

antitrust mutual assistance agreement, any antitrust evidence received under such agreement,

except to the extent such disclosure is required by law to be made to a defendant or respondent

in an action brought by DOJ or FTC. Such antitrust evidence is exempt from other provisions

of law that might otherwise be construed to require disclosure, including the Freedom of

Information Act, 5 U.S.C. § 552, described below.

This statute does not provide specific enforcement mechanisms for the confidentiality

provision, or penalties for its breach. Other laws and regulations, however, prohibit the

improper use of non-public information. See discussion in Part B, infra.

15 U.S.C. §§ 1311-1314, Antitrust Civil Process Act

(applies only to DOJ)

This statute authorizes the DOJ Antitrust Division to issue compulsory process for documents

or testimony in furtherance of civil investigations. Section 1313(c) of this statute provides

that, other than for use in oral depositions in furtherance of such investigations, no documents

or transcripts produced pursuant to such compulsory process shall be made publicly available

without the consent of the party that produced the materials. Such materials may, however, be

used when necessary before any court, grand jury or federal administrative or regulatory

agency in any case or proceeding, including an investigation or proceeding conducted by the

FTC. Such materials may also be disclosed to Congress or to any authorized committee or

subcommittee thereof.

Section 1313(e) also provides for the return, at the completion of an investigation, of original

materials produced pursuant to this statute during the course of the investigation. Any

requests for the return of such materials must be in writing. The Division is permitted,

however, in certain circumstances, to keep copies of materials produced.

Section 1314(g) exempts documents and testimony submitted in response to compulsory

process authorized by this statute from disclosure under FOIA.
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This statute does not provide specific enforcement mechanisms for the confidentiality

provision, or penalties for its breach. Other laws and regulations, however, prohibit the

improper use of non-public information. See discussion in part B, infra.

15 U.S.C. §§ 41-68, the Federal Trade Commission Act

(applies only to FTC)

The confidentiality provisions of the Federal Trade Commission Act are as follows:

Section 6(f) [15 U.S.C. § 46(f)] states that the Commission shall not have any

authority to make public any trade secret or any commercial or financial information which is

obtained from any person and which is privileged or confidential, except that the Commission

may disclose such information to officers and employees of appropriate Federal law

enforcement agencies or to any officer or employee of any State law enforcement agency upon

the prior certification of an officer of any such Federal or State law enforcement agency that

such information will be maintained in confidence and will be used only for official law

enforcement purposes.

Section 21(b) [15 U.S.C. § 57b-2(b)] provides that any document, tangible thing, or

transcript of oral testimony received by the Commission pursuant to compulsory process in an

investigation, a purpose of which is to determine whether any person may have violated any

provision of the laws administered by the Commission, may not be made available for

examination by any individual other than a duly authorized officer or employee of the

Commission (including contractors and consultants) without the consent of the person who

produced the document, thing, or transcript. Such materials may be used in Commission

proceedings and in judicial proceedings in which the Commission is a party. Such materials

may also be made available to other Federal and State law enforcement agencies upon the

certification of an officer of such an agency that such information will be maintained in

confidence and will be used only for official law enforcement purposes. This section does not

prevent disclosure to Congress, but the Commission is required to notify immediately the

owner or provider of any such information of a request from Congress for information

designated as confidential by the owner or provider.

Section 21(c) [15 U.S.C. § 57b-2(c)] provides that all information reported to or

otherwise obtained by the Commission which is not subject to the requirements of Section

21(b) shall be considered confidential when so marked by the person supplying the

information. If the FTC determines that information may be disclosed because it is not

protected by Section 6(f), it must notify the submitter of the information that the Commission

intends to disclose the information (i.e., place it on the public record, pursuant to Commission

Rule 4.9) not less than 10 days after receipt of the notification. Upon receipt of such

notification, the submitter may bring an action in United States District Court seeking to

restrain disclosure, including an application for a stay of disclosure. The Commission shall not

disclose the information until the court has ruled on the application for a stay.

Section 21(d) [15 U.S.C. § 57b-2(d)] provides that the provisions of 21(c) shall not be

construed to prohibit disclosures: (A) to Congress (with notice to the owner or provider of the

information); (B) of the results of investigations or studies (without identifying information or

disclosing trade secrets or any commercial or financial information obtained from any person

which is privileged or confidential); (C) of relevant and material information in FTC

adjudicative proceedings or judicial proceedings in which the FTC is a party, according to the

FTC's rules for adjudicative proceedings or by court rules or orders; (D) to Federal agencies

of disaggregated information for economic, statistical, or policymaking purposes only.
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Section 21(f) [15 U.S.C. § 57b-2(f)] provides that any document, tangible thing,

written report or answers to questions, or transcript of oral testimony received by the

Commission in any investigation, a purpose of which is to determine whether any person may

have violated any provision of the laws administered by the Commission, and which is

provided pursuant to any compulsory process or which is provided voluntarily in place of such

compulsory process, shall be exempt from disclosure under FOIA.

Section 10 of the FTC Act [15 U.S.C. § 50] provides for criminal penalties for the

unauthorized disclosure of information obtained by the Commission; see the discussion in part

B, infra.

16 C.F.R. § 3.1, et seq., FTC Rules of Practice for Adjudicative Proceedings (applies only

to FTC)

Adjudicative proceedings are formal proceedings conducted under the statutes administered by

the Commission which are required by statute to be determined on the record after an

opportunity for an agency hearing. An adjudicative proceeding is commenced when an

affirmative vote is taken by the Commission to issue a complaint. The rules provide for the

respondent to answer the complaint within a specified time, for discovery, and for a hearing

held before an Administrative Law Judge (ALJ) for the purpose of receiving evidence relevant

and material to the Commission's complaint and the respondent's answer. The hearings are

open to the public, except to the extent that an in camera order is entered by the ALJ or the

Commission. See Rule 3.41(a).

Rule 3.45 [16 C.F.R. § 3.45] provides for in camera treatment of documents and testimony

which keeps such documents and testimony confidential and not part of the public record of

the hearing. Rule 3.45(b) provides that the ALJ may order documents, testimony, or portions

thereof offered into evidence, whether admitted or rejected, to be placed in camera upon a

finding that their public disclosure will likely result in a clearly defined, serious injury to the

person, partnership or corporation requesting their in camera treatment; only respondents,

their counsel, authorized Commission personnel, and court personnel concerned with judicial

review shall have access thereto. The order shall provide the date on which in camera

treatment will expire.

16 C.F.R. § 4.10(g), et seq., FTC Rules of Practice for Adjudicative Proceedings (applies

only to FTC)

Rule 4.10(g) provides that the following categories of materials obtained by the FTC may be

disclosed in FTC administrative or court proceedings subject to FTC or court protective or in

camera orders as appropriate: (1) material obtained through compulsory process or voluntarily

in lieu thereof, and protected by sections 21(b) and (f) of the FTC Act; (2) material designated

by the submitter as confidential, and protected by section 21(c) of the FTC Act; or, (3)

material that is confidential commercial or financial information protected by section 6(f) of the

FTC Act. Prior to disclosure of such material in a proceeding, the submitter will be afforded

an opportunity to seek a protective or in camera order. All other material obtained by the

FTC may be disclosed in FTC administrative or court proceedings at the FTC's discretion

except where prohibited by law.
4

Rule 26(c) of the Federal Rules of Civil Procedure

This rule provides that a court may grant, in civil litigation in federal court, a protective order

concerning discovery, including, inter alia, that certain matters not be inquired into, or that the

scope of discovery be limited to certain matters; and that a trade secret or other confidential

research, development, or commercial information not be disclosed or be disclosed only in a

certain way.

A court may impose sanctions for violations of protective orders entered pursuant to this rule.

Rule 6 of the Federal Rules of Criminal Procedure

This rule governs the conduct of grand jury proceedings. Subsection (e) of this rule prohibits,

without the permission of a court, public disclosure of matters occurring before the grand jury

by any person having knowledge of such proceedings, except witnesses, who are free to

disclose their testimony.

Knowing violations of this rule are punishable as a contempt of court.

5 U.S.C. 552, Freedom of Information Act

FOIA is a statute that provides that any person has a right of access to federal agency records,

except to the extent that FOIA authorizes the agencies to withhold certain records from

disclosure. Of the categories of records which may be withheld under FOIA, those of primary

relevance to the antitrust enforcement agencies are:

trade secrets and commercial or financial information, obtained from a person, that is

privileged or confidential (subsection 552 (b)(4));

records or information compiled for law enforcement purposes to the extent that

disclosure thereof could reasonably be expected, inter alia, to interfere with enforcement

proceedings or to disclose the identity of a confidential source (subsection 552(b)(7)(A) and

(D));

intra-agency and inter-agency memoranda or letters that would be routinely privileged

in civil discovery, e.g., attorney work-product or attorney-client information (subsection

552(b)(5));

national defense or foreign policy information that is properly classified (subsection

552(b)(1));

information that may be withheld on the basis of other specific statutory authority

(subsection 552(b)(3)).

FOIA does not authorize withholding information from Congress.
5

28 C.F.R. § 16.7, procedure for processing requests for disclosure of information subject

to the business information exemption to FOIA (applies only to DOJ)

This regulation specifies the procedures DOJ must follow before it can disclose, in response to

a request under FOIA, any materials that may qualify for exemption from disclosure as

confidential business information. The section requires that before any such disclosure can be

made, DOJ provide notice to submitters of information that either: (i) has been designated as

confidential business information by the submitter; or (ii) DOJ has reason to believe may

constitute confidential business information. This notice is intended to enable the submitter to

object to the planned disclosure and, if the submitter chooses, seek a protective order. DOJ is

not required to provide notice to any submitter whose information DOJ has determined not to

disclose.

This regulation does not provide specific enforcement mechanisms for the confidentiality

provision, or penalties for its breach. Other laws and regulations, however, prohibit the

improper use of non-public information. See discussion in part B, infra.

5 U.S.C. § 552a, Privacy Act

The Privacy Act permits federal agencies to maintain "systems of records," i.e., records that

are retrievable by the name, social security number or other personal identifier of an individual

U.S. citizen (or permanent resident alien), subject to requirements that the agencies disclose

the existence of such records systems and that individuals have access to records concerning

themselves. The Privacy Act, however, sets forth several exceptions to this general restriction,

including one that permits, under specified circumstances, agencies to exempt investigatory

material compiled for law enforcement purposes from such "systems of records" and, thereby,

to deny access to such material.

B. Laws and Procedures Providing Sanctions for Breaches of the 

Confidentiality Laws and Procedures

18 U.S.C. § 1905, Trade Secrets Act

This statute provides criminal penalties for unauthorized disclosure of trade secrets or

confidential business information by any government employee or agent of DOJ within the

meaning of the Antitrust Civil process Act, who comes into possession or gains knowledge of

such information during the course of his or her employment or official duties. Said penalties

include a fine of not more than $1,000, one year's imprisonment or both, and removal from

employment.

18 U.S.C. § 641, Theft of Government property, records

This statute provides criminal penalties for the theft, embezzlement, knowing conversion, or

unauthorized conveyance of any record, voucher, money, or "thing of value" (which, according

to judicial interpretation, includes information) possessed by the United States Government.

Said penalties include a fine or imprisonment of not more than 10 years, or both.
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18 U.S.C. § 1831 et seq., Economic Espionage Act

This statute provides criminal penalties for theft of trade secrets, as that act is defined in the

statute. It also provides criminal penalties for economic espionage, which the statute, in

essence, defines as the theft of trade secrets to benefit a foreign power. The penalty for

individuals convicted of theft of trade secrets under the statute includes a fine of not more than

$500,000, or imprisonment of not more than ten years, or both, and for an organization

includes a fine of not more than $5 million. The penalty for individuals convicted of economic

espionage under the statute includes a fine of not more than $500,000, or imprisonment of not

more than 15 years, or both, and for organizations includes a fine of not more than $10 million.

Penalties also include forfeiture of property used in or derived from trade secret theft or

economic espionage.

The statute specifically does not prohibit any otherwise lawful activity conducted by a

governmental entity of the United States, a state, or a political subdivision of a state, nor shall

it be construed to affect the otherwise lawful disclosure of information by any government

employee under FOIA. The statute also preserves the confidentiality of trade secrets in court

proceedings brought thereunder.

5 C.F.R. § 2635.703, Office of Government Ethics - Standards of Ethical Conduct for

Employees of the Executive Branch

This section prohibits the improper use of non-public information by an Executive Branch

employee to further his or her own private interest or that of another person. Non-public

information is information that the employee gains by reason of federal employment and that he

or she knows or reasonably should know has not been made available to the general public.

Section 2635.106 provides that any violation may be cause for appropriate corrective or

disciplinary action pursuant to Government wide regulations or agency procedures, which

action may be in addition to any action or penalty prescribed by law. These sections have been

incorporated by reference in the FTC's Rules. See 16 C.F.R. § 5.1 et seq.

15 U.S.C. § 50 (Federal Trade Commission Act) and 16 C.F.R. § 4.10(c) (applies only to

FTC)

This section of the FTC Act (and the above-referenced Rule) provides that any officer or

employee of the Commission who shall make public any information obtained by the

Commission without its authority, unless directed by a court, shall be deemed guilty of a

misdemeanor, and, upon conviction thereof, shall be punished by a fine not exceeding $5,000,

or by imprisonment not exceeding one year, or by fine and imprisonment, in the discretion of

the court.

II. AUSTRALIA

A.	Confidentiality Laws and Procedures

The Trade Practices Act 1974

Section 89 outlines the procedure for seeking an authorisation from the Australian Competition

and Consumer Commission (as used in this Part II, Commission) in relation to certain anticompetitive conduct, and in doing so it outlines the circumstances in which confidentiality may
7

be claimed in relation to information so placed before the Commission and thus excluded from

the public register of applications for authorisation. If the information contains particulars of a

secret formula or process, cash consideration offered for shares or assets, or the current costs

of manufacturing, producing or marketing goods or services, then it will be excluded from the

public register. Further, if the information relates to anything else the Commission in its

discretion considers to be confidential, it may exclude the information from the public register.

Where the Commission refuses a request to exclude such information from the public register

on the basis of its confidential nature, the person who submitted the information may withdraw

it, in which case that submission will not form part of the application for authorisation.

Section 95 requires that the Commission keep a public register of notifications, particularly in

relation to conduct which amounts to exclusive dealing. (Once notification is lodged, the

corporation is permitted to engage in such conduct until otherwise notified by the

Commission.) The section outlines the circumstances in which confidentiality may be claimed

in relation to information so placed before the Commission and thus excluded from the public

register of notification. If the information contains particulars of a secret formula or process,

cash consideration offered for shares or assets, or the current costs of manufacturing,

producing or marketing goods or services, then it will be excluded from the public register.

Further, if the information relates to anything else the Commission in its discretion considers to

be confidential, it may exclude the information from the public register.

Where the Commission refuses a request to exclude such information from the public register

on the basis of its confidential nature, the person who submitted the information may withdraw

it, in which case that submission will not form part of the notification.

The procedures for requesting that a document be excluded from the public register on the

basis of its confidential nature under sections 89(5) and 95(2) can be found in regulation 24(1)

of the Trade Practices Regulations.

Section 106 of the Trade Practices Act 1974 grants the Australian Competition Tribunal,

where it is satisfied that it is desirable to do so by reason of the confidential nature of any

evidence or matter or for any other reason, the power to prohibit or restrict the publication of

evidence given before it, whether in public or private, or of matters contained in documents

filed or lodged with the Registrar, received in evidence by the Tribunal or placed in the records

of the Tribunal.

Section 155AA of the Act provides that Commission officials must not disclose any protected

Part IV information to any person except as part of the official's functions as a Commission

official or when he/she is required by law to disclose the information. "Protected Part IV

information" is defined as information relating to a matter under Part IV and which has been

obtained by the Commission under section 155. Section 155 enables the Commission to

require a person to answer questions, provide information or produce documents, if the

Commission, the Chairperson or Deputy Chairperson has reason to believe that a person is

capable of furnishing information relating to a matter that may constitute a contravention of the

Trade Practices Act.

Section 157 of the Act, amongst other things, provides that: (a) where a corporation makes an

application for authorization; or (b) where the Commission has instituted proceedings or made

an application for an order against a corporation or other person, the Commission shall

provide, at the request of the corporation or other person, a copy of every document furnished

to or obtained by the Commission in connexion with the matter that tends to establish the case

of the corporation or other person, other than documents obtained from the corporation or
8

other person or prepared by an officer or professional adviser of the Commission. However,

subsections (2) and (3) provide that, when the Commission declines to comply with such a

request, a Court that is asked to order the Commission to comply may refuse to do so "if the

Court considers it inappropriate to make the order by reason that the disclosure of the contents

of the document or part of the document would prejudice any person or for any other reason."

The Freedom of Information Act of 1982

The Freedom of Information Act 1982 gives members of the public rights of access to official

documents of Commonwealth Government Ministers and agencies, limited only by exceptions

and exemptions necessary for the protection of the essential public interests and the private and

business affairs of persons in respect of whom information is collected and held by agencies.

Of the categories of documents that are exempt from disclosure under FOI, those of relevance

to antitrust authorities are:

Section 33(1) operates to exempt documents, the disclosure of which would or could

be reasonably expected to cause damage to the security, defence or international relations of

the Commonwealth or would divulge any information or matter communicated in confidence

by or on behalf of a foreign government, an authority of a foreign government or an

international organisation.

Section 36 operates to exempt documents where disclosure would disclose opinion,

advice or recommendation, or consultation or deliberation relating to the deliberative processes

involved in the functions of the Commission, and such disclosure would be contrary to the

public interest.

Section 37 exempts documents if disclosure would, or could reasonably be expected to,

prejudice the conduct of an investigation, or the enforcement or proper administration of the

law. Documents are also exempt if their disclosure under this Act would, or could reasonably

be expected to, endanger the life or physical safety of any person.

Section 40(1)(d) exempts documents where disclosure would, or could reasonably be

expected to, have a substantial adverse effect on the proper and efficient conduct of the

operations of the Commission.

Section 43(1)(a) exempts documents containing trade secrets.

Section 43(1)(b) exempts documents containing information having a commercial value

that would, or could reasonably be expected to, be destroyed or diminished if the information

were disclosed.

Section 43(1)(c)(i) exempts documents where disclosure could be reasonably expected

to unreasonably adversely affect a company in respect of its business affairs.

Section 43(1)c(ii) exempts documents where there is a reasonable expectation that

disclosure would prejudice future supply of information to the Commission.

Section 45 exempts documents the disclosure of which would constitute a breach of

confidence. This exemption relates to information communicated to the Commission in a

relationship of confidence as indicated on its face or in circumstances imparting an obligation

of confidentiality.
9

the Federal Court Act and the Federal Court Rules

Pursuant to Section 23 of the Federal Court Act and Order 15 of the Federal Court Rules,

courts may, in proceedings before them, issue orders that information may not be disclosed or

may be disclosed only in a certain way. In addition, Order 15 of the Federal Court Rules

empowers persons seeking to avoid the production of documents subject to discovery, to rely

on the claim that they are privileged from production, e.g. the documents are subject to legal

professional privilege, or to Crown privilege. (Order 15(17) preserves the right of parties to

rely on any rule of law which authorises or requires the withholding of any document on the

grounds that its disclosure would be harmful to the public interest.)

The Privacy Act 1988

The Privacy Act 1988 establishes a scheme to govern the collection, storage, security, access,

use and disclosure of personal information by Commonwealth agencies through a set of rules

called Information Privacy Principles. This scheme is subject to prescribed exceptions which

limit an agency's use or disclosure of personal information (Information Privacy Principles 10

and 11).

The Administrative Appeals Tribunal Act 1975

Section 36 of the Administrative Appeals Tribunal Act 1975 provides that, in proceedings

before it, the Attorney General may certify that disclosure of a document would be contrary to

the public interest, and the Tribunal must do everything to ensure that the information in the

document is not disclosed other than to a member of the Tribunal.

The Administrative Decisions (Judicial Review) Act 1977

Under section 13 of the Administrative Decisions (Judicial Review) Act 1977 an application

may be made to the Commission for a statement in respect of a decision setting forth, inter

alia, the reasons for the decision, the findings on material questions of fact, and a reference to

the evidence on which the findings were based. Section 13A sets out information not required

to be disclosed in response to such an application, including, information as to a person's

business affairs which is supplied in confidence, or if published, would reveal a trade secret.

Under section 14, the Attorney General can certify that the disclosure of information would be

contrary to the public interest.

The Public Service Regulations

Regulation 35 of the Public Service Regulations prohibits an officer from disclosing

information obtained in the course of official duties unless authorised to do so.

The Evidence Act 1995

Section 130 of the Evidence Act 1995 provides that a court (whether or not on the application

of a person) may direct that a document relating to matters of state not be adduced as evidence

on the grounds of public interest in preserving secrecy or confidentiality. Information will be
10

taken to relate to matters of state if adducing it as evidence would, inter alia, prejudice the

prevention, investigation or prosecution of an offence; prejudice the prevention or investigation

of, or the conduct of proceedings for recovery of civil penalties brought with respect to, other

contraventions of the law; or disclose the identity or existence of a confidential source of

information relating to the enforcement or administration of the law.

Section 131 provides (subject to certain exceptions) that evidence is not to be adduced of

communications made or documents prepared in the context of attempts to negotiate the

settlement of a dispute.

The Mutual Assistance in Criminal Matters Act 1987

Section 43B of the Mutual Assistance in Criminal Matters Act 1987 outlines restrictions on

use of information sent to Australia in response to a request made by the Attorney General

under the Act in relation to a criminal matter. It provides that such material is not used or

disclosed intentionally for any purpose other than that for which it was requested unless the

Attorney General has approved otherwise.

The restriction on unauthorised use of the material is extended to inadmissibility in evidence in

any proceedings other than those for which it was obtained without the Attorney General's

approval. In addition, any information, document, article or thing which has itself been

obtained directly or indirectly from a person as a result of unapproved use of the material

received from the other country is also inadmissible in evidence in any proceedings other than

those for which it was requested (or used for the purposes of any other investigation) without

the Attorney General's approval.

Section 43B(4) provides a penalty of two years imprisonment for contravention of subsection

(1).

Section 43C provides a penalty of two years imprisonment for intentional disclosure of the

contents of a request for assistance, of the fact that a request has been made or of the fact that

assistance has been granted or refused where the person has such knowledge as a result of his

or her employment, unless such disclosure is necessary in the performance of his or her duties

or the Attorney General has authorised such disclosure.

B.	Laws and Procedures Providing Sanctions for Breaches of the 

Confidentiality Laws and Procedures

The Crimes Act 1914

Section 70 of the Crimes Act 1914 provides a penalty of two years imprisonment for

unauthorised disclosure by a Commonwealth officer of information which the officer has a duty

not to disclose.

The Privacy Act 1988

Under section 93 of the Privacy Act 1988, a confider may recover damages from a confidant in

respect of a breach of confidence with respect to personal information.
11

The Freedom of Information Act 1982

Section 59 of the Freedom of Information Act 1982 provides that where an agency makes a

decision that documents relating to the business, commercial or financial affairs of a company

are not exempt documents under section 43, the company may apply to the Administrative

Appeals Tribunal for a review of that decision.

Section 57 of the Freedom of Information Act 1982 provides that a person may complain to

the Ombudsman concerning any action taken by an agency in the exercise of its powers and the

performance of its functions under the Act. The Ombudsman cannot overturn the decision of

an agency, although recommendations can be made to that agency or the responsible minister.