The Commissioner may exercise the powers under section 210 on his or her own volition or on request, for example, by a party to an opposition or other proceeding.

A person seeking the exercise of the Commissioner’s powers must file all of the following:

a request setting out the reasons for the request being made and particularly why the person to whom the summons or notice would be addressed has a substantial interest in the proceedings, why the evidence of the witness or the identified document or article is likely to be of substantial relevance to the matter before the Commissioner and, in the case of a summons, why the receiving of oral evidence is necessary or desirable in all the circumstances;
a schedule in the format specified in part 7.6.7 Schedule to Requests for Summons or Notice to Produce setting out the details of the proceeding, the name and address of the person to whom the summons or notice is directed and details of the specific matters on which the witness is being summons to give evidence or the documents or articles for which production is sought; and
evidence that a legally enforceable offer to pay reasonable expenses has been made to the person to which the summons or notice would be directed.

Note: A draft summons or notice is no longer required.

Once these elements have been filed the Commissioner will consider whether a prima facie case exists for the issuance of a summons or notice. If not, the requestor will be informed and may have the opportunity to amend the request. Typically this would be in the case where a notice identifies a class of documents some of which are likely to be of substantial relevance and others not.

If the Commissioner considers that a prima facie case has been made for issuing a summons or notice he or she will invite submissions from the party or person to whom the notice or summons would be directed. The Commissioner will then decide whether or not to issue the notice or summons. An objection, for example that a document is subject to legal professional privilege, can be made at this stage or subsequently as an excuse for not complying with the notice or summons once issued.

The Commissioner is responsible for preparing and giving the summons or notice to the person concerned. The notice will include a statement of the actions under section 210A that may be taken if the person fails or refuses to comply. It will also specify a date and place for a witness to appear or a document or article to be produced. Generally production will be required within one month of the date of the notice but the Commissioner will vary this depending on the circumstances.

Note: After 15 April 2013, evidence required to be produced must be filed electronically with IP Australia by means approved by the Commissioner.

The Commissioner will only require production of physical articles to IP Australia in exceptional circumstances. If necessary the Commissioner may direct that an article be made available or produced for inspection in situ or at a suitable location.

Note: After 15 April 2013, under amended regulation 4.3(2)(b) a document is not open for public inspection (OPI) if the Commissioner has reasonable grounds for believing that it should not be OPI. Consequently a party no longer needs to seek a notice of production on itself to request that a filed document not be OPI in appropriate circumstances. See 7.13 Documents not OPI - Orders for Inspection.

Amended Reasons

Amended Reason	Date Amended
	18 Oct 2023