A "dawn raid" refers to an unannounced visit by a regulatory agency, often early in the morning, to enter and search premises, as well as inspect and seize documents.
The ACCC< ASIC and the ATO all have dawn raid powers. Although dawn raids are relatively rare – for example only 4 were executed by the ACCC in 2022/23 and 6 in 2021/22 – companies should be prepared to respond immediately.
Key legal principles
Search warrant
Dawn raids must only be conducted under and in accordance with a valid search warrant issued by a magistrate or judge. This will set out the alleged contraventions and kind of evidential material that is the subject of the search.
Who will conduct a dawn raid?
An inspector from the regulator will be appointed under the warrant. They may be assisted by the Australian Federal Police, other officers from the regulator or external consultants (including forensic IT and cyber specialists).
What powers do the inspectors have?
Search and seizure - the inspector and their assistants may search premises, access and operate computers (including document management systems), make copies of documents, take in equipment and remove materials. This is subject to two qualifications:
- Relevance: the search must occur within the scope of the warrant.
- Privilege: the inspectors cannot copy or remove documents subject to a claim of legal professional privilege. Privileged documents include confidential communications between the company and its external lawyers, confidential communications between two lawyers acting for the company, and documents (including emails) prepared by the company, or its lawyers, for the dominant purpose of providing legal advice or litigation.
Questioning - the inspectors may ask questions to assist the execution of the warrant.
