Continuing the annual tradition of her predecessors, ACCC Chair Gina Cass-Gottlieb outlined the ACCC’s enforcement priorities for the upcoming year in an address to the Committee for Economic Development of Australia in Sydney on 7 March 2023. A full copy of the speech can be found on the ACCC website.
Last year’s address – by outgoing chair Rod Sims – was delivered just two weeks before Ms Cass-Gottlieb assumed the role. Ms Cass-Gottlieb reinforced the regulator’s enduring priorities, but also placed particular focus on the importance of prioritising issues affecting Australian consumers in the context of cost of living challenges and on using education and compliance activities to inform Government policy and law reform activities.
Sector specific focuses: energy, essential services, financial services, digital and supply chains
As expected, Ms Cass-Gottlieb led with the enduring priorities, outlined in 2022 as well, in consumer facing sectors that are particularly impacted by cost of living pressures.
Energy and essential services
The ACCC will continue its focus on competition and consumer issues in the provision of energy and essential services. Ms Cass-Gottlieb highlighted pricing and representations about the features and benefits of essential services (particularly energy services and telecommunications) as areas that the ACCC – after a busy 2022 involving several enforcement actions – will continue to prioritise. In this area at least, the emphasis from the ACCC appears to be squarely on enforcement, with Ms Cass-Gottlieb referencing further investigations currently underway.
This focus is in addition to the ACCC’s ongoing scrutiny of specific competition and pricing issues in gas markets, including the ACCC’s remit in enforcing the Federal Government’s wholesale gas price cap and monitoring and reporting on the conduct of gas market participants as part of the Gas Inquiry, which has recently been extended to 2030.
Financial services
Again highlighting cost of living pressures and the impact of interest rate rises, the ACCC will continue to use its enforcement, compliance and engagement activities to address competition issues in the financial services sector.
Ms Cass-Gottlieb outlined the ACCC’s concerns about consumer choice and switching in relation to deposit products – to be investigated through the recently commenced inquiry into retail deposit markets – and the ACCC’s role in shaping the Federal Government’s strategic plan for the payments system.
Digital platforms
Unsurprisingly, competition and consumer issues related to the products and services offered by digital platforms remains a core priority area in 2023-24, particularly given the ACCC’s ongoing concerns around scams, ‘dark patterns’, self-preferencing and exclusive arrangements in this sector. The ACCC’s Digital Platform Services Inquiry has now released its fifth interim report, and with Treasury having concluded its consultations on the recommendations within the report, it is now with the Government to consider next steps on law reform.
To that end, Ms Cass-Gottlieb made clear the ACCC’s view that rapid advances in technology and e-commerce, and the significant role of digital platforms, means that the risk and magnitude of harm to consumers ‘post-dates’ the current consumer protection laws and necessitates reform.
The ACCC has also identified consumer and fair trading issues relating to manipulative or deceptive advertising and marketing practices in the digital economy as a priority area in 2023-24, continuing from last year. This follows the ACCC announcing last month that it had conducted a sweep to identify misleading testimonials and endorsements by social media influencers across a range of digital platforms.
Global and domestic supply chains
The ACCC’s priorities for 2023-24 identify competition and consumer issues in global and domestic supply chains as a key priority, with a focus on transport and logistics – an area that has a direct impact on the cost of living pressures facing consumers.
Sustainability and the economic transition – more than greenwashing
A week after delivering a report on its sweep of potential greenwashing claims, the ACCC reaffirmed its focus on claims regarding environmental sustainability. More than simply identifying it as another ‘type’ of misleading or deceptive conduct, Ms Cass-Gottlieb, in delivering the address, framed the ACCC’s interest and role more broadly, with the regulator taking an ‘enhanced focus on sustainability.’
The ACCC has clearly signalled its role in the economy-wide transition towards sustainability, with a continued focus on greenwashing and consumer representations. The ACCC has also flagged that the move towards new industries and infrastructure in the greener economy may raise new competition issues, particularly where there is coordination or collaboration between businesses (including competitors) to support these new technologies.
The regulator has established a new internal taskforce to coordinate this priority, and will draw together its investigative, educational, compliance and enforcement resources across competition and consumer law (including product safety) to ‘influence’ the issues that the ACCC expects will grow in prominence through the energy transition.
Focus on consumers and small businesses – unfair contract terms, scams, consumer guarantees and young children
Following legislative reform in 2022, from November 2023 civil penalties will apply to the inclusion of or reliance on unfair contract terms (whereas previously the terms would have simply been void.
Ms Cass-Gottlieb made clear the ACCC’s longstanding support for this reform, and signalled that the ACCC will be prioritising compliance and enforcement when the new law comes into effect.
The detection and disruption of scams will also remain an area of priority for the ACCC, particularly with the implementation of the National Anti-Scam Centre.
The ACCC’s enforcement priorities also outline a continued focus on ensuring industry compliance with consumer guarantees – with a focus on high value goods like motor vehicles and caravans – and consumer protection safety issues for young children.
Finally, the ACCC has flagged that it will continue to prioritise its work to ensure that small businesses receive the protections of the competition and consumer laws and small business industry codes of conduct, particularly in the agriculture and franchising sectors. The ACCC has consistently noted that enforcement and high penalties in this area are required to ensure sufficiently high deterrence, and to protect small businesses with limited bargaining power in their dealings with larger businesses.
Cartels and exclusivity arrangements – and reform to merger laws?
Carrying through as enduring priority, the ACCC will continue investigation and enforcement in relation to cartels. In addition to noting the first criminal sentence for cartel conduct in 2022, Ms Cass-Gottlieb emphasised that the combined effect of litigation, compliance and education work is undertaken for a deterrence purpose, and the ACCC reports that there has been a ‘significant increase’ in approaches under the cartel immunity program.
The ACCC has also identified exclusive arrangements by firms with market power that impact competition as a priority area for 2023-24, given that these arrangements can increase barriers to entry or lead to the anti-competitive foreclosure of rivals.
Finally, and in a change from her predecessor’s emphasis on Australia’s merger control regime, Ms Cass-Gottlieb did not proactively refer to merger control as an area of focus in its own right in her speech.
However, from discussion after delivery of the address, it is clear that the ACCC is continuing to work through its recommendations to Government for merger clearance reform, but has not come to a concluded view on specifics, including deal thresholds.
