The Australian Competition and Consumer Commission (ACCC) has announced its Compliance and Enforcement Priorities for 2023-24, the first in Gina Cass-Gottlieb’s tenure as ACCC chair.
The Chair’s speech (available here) offered few surprises and instead signalled a consistent approach to her predecessor with a number of the 2022-23 enforcement priorities remaining on the ACCC’s agenda. However, the speech reflected the prevailing political climate and included a heavy emphasis on efforts to address cost of living pressures. The Chair also revealed that the ACCC has a number of lofty ambitions for the year ahead, including in the areas of misuse of market power enforcement, digital platforms regulation reform and civil and criminal cartel enforcement.
In summary, over the coming year the ACCC intends to:
- focus on cost of living pressures including pricing of essential services, competition and pricing issues in the gas market and address allegations of anti-competitive conduct in the financial services sector;
- pursue consumer welfare issues including environmental claims and sustainability, deceptive advertising and marketing practices in the digital economy and scam detection;
- monitor the implementation of new small business protections including a focus on unfair contract terms and enforce existing industry codes of conduct, including in agriculture and franchising;
- continue to press for digital platform reform; and
- build on cartel enforcement success in 2022.
Cost of living and essential services
Top billing on the ACCC’s enforcement priorities are measures to address cost of living pressures. The ACCC has been thrust into the limelight on these issues after receiving numerous government mandates seeking to address cost of living concerns fuelled by rising inflation. Priority actions include sector inquiries into childcare, gas and deposit rates. This is consistent with the Chair’s recent statements to the Senate Estimates committee, where she said that the ACCC is “acutely aware of issues related to the cost of living” and that the “conduct of the financial services industry is critical in this rising interest rate environment”. She also flagged that the ACCC is responding to “community concern” regarding childcare and described essential services pricing as a “key issue” for the ACCC. The ACCC has also emphasised that it maintains a focus on supporting competition in financial services and that it will continue to focus on misleading representations made to consumers in other key service areas (such as telecommunications).
The Chair placed particular emphasis on the ACCC’s role in strictly enforcing compliance with the price cap imposed upon wholesale gas producers, and its move to publish a mandatory code of conduct. She indicated this will account for a “substantial share” of the ACCC’s compliance and enforcement effort in the energy sector.
The Chair reiterated the ACCC’s commitment to enforce against anti-competitive exclusive dealing arrangements by companies in a position of market power, which can increase barriers to entry or lead to the anti-competitive foreclosure of rivals.
Consumer welfare and protecting vulnerable Australians
Australian Consumer Law enforcement remains a key plank in the ACCC’s enforcement strategy through use of misleading and deceptive conduct provisions, prioritising industry compliance and in relation to consumer guarantees.
In a repeat of one of last year’s priorities, manipulative or deceptive advertising and other deceptive practices in the digital economy are again a focus for the ACCC. The ACCC has recently run several proactive internet sweeps to identify deceptive marketing practices across the digital economy. Most recently, it has signalled an intent to focus upon misleading representations by online “influencers”, mirroring similar activity by ASIC in the financial services space.
Like ASIC, the ACCC has signalled increasing focus on potentially misleading environmental and sustainability claims. Results from a widespread internet sweep published last week show that over 57% of the businesses swept made concerning claims about environmental credentials. The ACCC has established a new internal taskforce focused upon sustainability that will help to inform and co-ordinate its efforts.
Other priorities focused on consumer welfare seek to protect vulnerable consumers and detect and prevent scams. The ACCC flagged that it will continue to lend expertise and support to prepare for the establishment of the Government’s National Anti-Scams centre. The ACCC also intends to address the disproportionate impact of scams and misleading advertising and sales practices on First Nations communities, and tackle product safety issues for young children. The Chair also reiterated the ACCC’s support for a new, economy-wide ban on unfair trading practices, a core recommendation from November’s fifth interim report in the ACCC’s Digital Platform Services inquiry.
Small business protections
Complementing the priorities that seek to address cost of living pressures, a number of other areas of focus for the ACCC are intended to assist small businesses.
Amendments to the unfair contract terms regime will come into force later in the year. These changes will result in a broader range of contracts being subject to the regime and have introduced potentially significant penalties for breach of the provisions (see our detailed summary here). The ACCC has issued a warning that it has begun a “proactive” review of business terms and conditions across different industries, which will form the basis for future enforcement cases, and which should serve as a timely reminder for businesses that it is critical to conduct a review of their standard form contracts.
The Chair also flagged that the ACCC will continue to actively monitor and enforce industry codes, including those in agriculture and franchising.
Digital platform reform has been top of the ACCC’s agenda since the launch of the Digital Platform Inquiry in 2019. The topic is a main-stay of previous priorities speeches, and the Chair has reiterated the recommendations in the ACCC’s fifth interim report. In that report, the ACCC recommended a broad range of new sector-specific regulation, including new service-specific mandatory codes of conduct for certain designated digital platforms to regulate online interface design choices, scams, self-preferencing and certain tying conduct (for more detail see our previous analysis here).
The ACCC is awaiting feedback from the government on its reform proposals. Within 24 hours of the Chair’s speech, the ACCC has followed through on its promise to remain focused on digital platform issues with the publication of an issues paper for a wide-ranging inquiry into the expanding ecosystems of major digital platforms. The ACCC will examine issues including how interconnectedness between the variety of products offered by large digital platforms can restrict interoperability and increase barriers to entry for new entrants. The ACCC will also scrutinise the acquisition strategies of large digital platforms.
The Chair emphasised that cartel conduct remains an enduring priority for the ACCC, building on recent Court wins, including custodial sentences handed down in the Vina Money case and recent guilty pleas in the proceedings commenced against Aussie Skips. The Chair repeated earlier statements about increased engagement with the cartel immunity program, but was silent on the ACCC’s intention to review its immunity program this year. The Chair had previously indicated this is necessary due to the ongoing reticence of immunity applicants to be involved in public proceedings, which had a chilling effect on the success of the program.
The Chair reiterated that the ACCC will continue to pursue both criminal prosecutions and civil action. She has previously emphasised that the ACCC has learned a lot from its bruising in failed criminal cartel prosecutions in 2021, and has refuted any suggestion that the cartel conduct provisions need amending (in spite of criticism from Justice Wigney who described them as “devilishly complex and labyrinthe offence provisions”). While the Chair noted that “the criminal law struggles in any event with white-collar crimes”, the ACCC is keen to emphasise that it has not abandoned efforts to put a complex criminal prosecution before a jury, despite recent increases in maximum civil penalties. There are “quite a few” investigations ongoing in which the ACCC expects to reach a decision this year - and that some of them will be criminal.
While the Chair’s speech did not include any major surprises, a noticeable absence was any reference to reforms of Australian merger laws and review processes that were strongly supported by her predecessor Mr Rod Sims (see his 2022 speech). The Chair has previously voiced support for a mandatory merger control regime, as Australia is out-of-step with its international peers and the existing voluntary regime means that the ACCC is notified late about international transactions. It seems that the ACCC’s proposals in the merger reform space will remain under wraps for a little while longer.
Finally, the Chair’s speech suggests that the ACCC is unlikely to shy away from ambitious cases. She emphasised the importance of the misuse of market power prohibition and reiterated the ACCC’s willingness to bring complex cartel matters.
 ACCC media release, ‘ACCC social media sweep targets influencers’, 27 January 2023, available here.
 ASIC media release, ‘ASIC launches first Court proceedings alleging greenwashing’, 28 February 2023, available here.
 ACCC press release, ‘First individuals are sentenced for criminal cartel conduct’, 8 September 2022, available here.
 ACCC press release, ‘Aussie Skips and CEO plead guilty to alleged waste services price fixing cartel’, 27 February 2023, available here.
 Commonwealth Director of Public Prosecutions v Citigroup Global Markets Australia Pty Limited (No 1 – Indictment)  FCA 757, .
 MLex, ‘Comment: ‘It quacks, it waddles’ - Australia’s new antitrust chief outlines a return to enforcement basics’, 1 February 2023, available here. The Chair stated: “I feel it’s not beyond our wit to put that [a complex criminal case] clearly enough to a jury and, in essence we see through the complexity of the framing, to look at what the conduct actually is.”
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