The ACCC Chair, Gina Cass-Gottlieb, today unveiled the ACCC’s enforcement priorities for 2024-25. Consistent with issues of concern to many Australians, the priorities focus on addressing cost of living pressures and practices that harm disadvantaged members of the community.
Today’s speech marked the current Chair’s second presentation of the ACCC’s annual enforcement priorities, but was the first opportunity for reflection on the ACCC’s enforcement record under her leadership. The Chair highlighted penalties of more than A$620M obtained from successful actions in the current financial year. In 2023, the ACCC secured the highest penalties to date for both competition and consumer enforcement matters – against BlueScope Steel (A$57.5M) and Phoenix Institute (A$438M) – the highest penalty for resale price maintenance (Techtronic, A$15M), and the second highest fine for criminal cartel offences (Bingo, A$30M). The ACCC is currently litigating big-ticket cases against Mastercard and Qantas - multimillion-dollar penalties loom in each, and both serve to underline focus areas for the competition regulator.
Cost of living concerns have also provided a platform for the ACCC’s growing reform campaign which presently includes merger control, ex ante regulation of digital markets, an inquiry into the aviation sector, support for an expedited ‘super complaints’ process, a push for an unfair trading practices prohibition, and penalties for breaches of the consumer guarantee regime.
Our national competition team has been keeping a close watch on developments in the ACCC’s approach and shares its insights on this year’s key priorities below.
2024 priorities - how do they stack up against 2023?
There are a number of changes to this year’s specific priorities:
- There are 3 new priorities relating to the supermarket sector, aviation and consumer law compliance by NDIS providers.
- Five priorities have been removed from last year’s set of specific priorities: scams, supply chains, competition issues for digital platforms, exclusive arrangements and small businesses, although scams and small businesses have been added to the list of enduring priorities.
- Only 2 remained the same: sustainability and unfair contract terms.
There have been a range of amendments to the priorities for competition and consumer issues in digital markets, essential services such as energy and telecommunications, consumer guarantees, financial services, and consumer product safety for children. There are also fewer specific priorities, with only 10 down from 13 last year.
Other than the addition of scams and protecting small businesses, the ACCC’s enduring priorities remain the same: cartel conduct, anti-competitive conduct, product safety, and action to protect vulnerable and disadvantaged consumers and First Nations Australians.
The Chair’s speech today also emphasised deterrence and signalled further investigations and court action. The ACCC currently has 18 cases in the Federal Court and Tribunal, 2 of which were launched this year, comprising:
- 1 criminal cartel case,
- 1 civil cartel case,
- 1 anti-competitive conduct case,
- 14 consumer cases, and
- 1 merger authorisation review in the Tribunal (although the ACCC earlier this week confirmed it does not propose to seek review of the Tribunal’s decision to authorise the ANZ/Suncorp merger).
Court enforcement remains skewed towards consumer law, but the Chair confirmed today that the ACCC currently has a number of investigations into anti-competitive conduct underway and expects to make further announcements about this program of work throughout the year.
Food and groceries
The ACCC will prioritise consumer protection, fair trading, competition and pricing issues in the supermarket sector, given its impact on ongoing cost of living pressures facing consumers. The Chair noted that a focus would be on price increases, as well as pricing claims around specials and discounts (such as ‘was / now’ claims).
The ACCC is also conducting a 12-month inquiry into pricing and competition in the supermarket and grocery sector – examining supermarket pricing practices and the relationship between wholesale prices, including farmgate prices, and retail prices paid by consumers – which will wrap up in early 2025.
Sustainability
The Chair confirmed that the ACCC has a number of in-depth greenwashing investigations ongoing, including in the energy and consumer products sectors, identified following its 2023 internet sweep or following direct complaints. Sustainability has been a priority in previous years, and the ACCC has expanded its organisational capacity by establishing an internal sustainability taskforce, published guidance for business, collected market intelligence via the internet sweep, and educated the public. The court enforceable undertaking from MOO Premium Foods in relation to false and misleading representations regarding “ocean plastic” product packaging claims is the first public outcome following the announcement of this priority.
The ACCC is well positioned to commence enforcement proceedings, and is likely to prioritise cases across cosmetics, clothing, footwear and food and drink sectors, which its internet sweep identified as having the highest proportion of concerning claims.
The ACCC has also today announced that it will issue guidance on green collaboration, which gained attention last year following Treasury’s call for better market incentives to support the transition to net zero. The ACCC will issue guidance on the public benefits test under its authorisations process to ensure that competition law is not operating as an unnecessary barrier for businesses wanting to engage in green collaboration consistently with competition law.
Essential services: Telecoms, energy, financial services
The Chair emphasised that vigorous competition in essential services is critical to the efficient functioning of the economy, particularly given enduring cost of living pressures faced by Australian consumers. The ACCC has a well-known body of work in relation to the telecommunications, energy and financial services sectors, and will continue to prioritise competition and consumer protection.
In these sectors, the ACCC’s ongoing market inquiries (in particular, financial services, electricity and gas) have provided important insights into business conduct that may harm competition and consumers.
Misleading conduct will be the focus across these essential services sectors, in particular for pricing and product claims in the energy and telecommunications sectors. The Chair called out mobile phone coverage, data speeds, off-peak tariffs and environmental benefits, and emphasised that accuracy about price and product performance was critical to enable informed consumer choice.
Aviation
As expected, the ACCC will prioritise competition and consumer issues in the aviation sector. The ACCC’s airline monitoring reports identified stubbornly high rates of cancellation and delay, and that domestic travel is at a critical juncture with the entry of fourth player Bonza providing an opportunity for increased competition.
The Chair noted that the ACCC continues to receive a high number of consumer complaints in relation to aviation services. The sector is a possible candidate for the new ‘super complaints’ process, with the Airline Consumer Advocate reporting thousands of consumers complaints against domestic airlines. The ACCC’s ongoing role in monitoring the airline industry will provide the opportunity to continue to closely examine business practices in the sector.
This priority area follows a significant year for the ACCC in relation to aviation, in which it:
- commenced proceedings against Qantas for alleged misleading conduct in relation to the advertising and sale of cancelled flights;
- was directed by the Government to reinstate airline monitoring and reporting; and
- made a submission to the Aviation Green Paper calling for reform to slots management at Sydney Airport and for a consumer protection compensation scheme.
Consumer guarantees and unfair contract terms
The Chair reported that “the most complained about issue” to the ACCC is whether businesses are complying with their obligations to honour consumer guarantees. The ACCC’s concern with ecommerce platforms’ compliance with consumer guarantees and the consumer law more generally is demonstrated by recent proceedings against Grays eCommerce, Mosaic Brands and eHarmony – and it has said it also has other investigations on foot.
The ACCC will continue its monitoring of the automotive and caravan sectors and will expand into the consumer electronics sector. The Chair also called for the law on consumer guarantees to be strengthened, for access to justice to be improved, and for a better culture of compliance by manufacturers and retailers. She indicated that the ACCC considers reform is needed to make a failure to meet consumer guarantees a civil penalty contravention.
The Chair reiterated support for the expanded unfair contract terms regime and indicated that there are a number of matters currently under investigation. Today’s speech made particular mention of clauses that seek to unilaterally vary agreements and impose unreasonable fees and penalties.
Consumer issues in the digital economy and scams
Drawing on statistics about a dramatic increase in online commerce, the Chair noted that consumer and fair trading issues in the digital economy will continue to be a priority.
Online reviews, comparison websites and influencer marketing have become important ways for businesses to reach consumers and influence buying behaviour – and will be an area of particular focus. The video gaming industry will also be a focus given its significant size and reach for younger consumers, and the ACCC will closely examine that industry in relation to the use of dark patterns (especially the adequacy of safeguards and use of nudge strategies) in relation to in-app purchases.
The ACCC is also continuing its work on combatting scams online, including through the National Anti-Scams centre launched by the ACCC on 1 July 2023, supporting development of mandatory industry codes and disrupting scams through consumer awareness campaigns. Scams are said to cost the public more than $3.1 billion per year and disproportionately affect vulnerable people.
Vulnerable consumers
A new priority for the ACCC relates to improving compliance by NDIS providers with the consumer law. The ACCC will be focused on systemic or serious consumer law breaches including in relation to pricing of products or services and consumer guarantees. The ACCC has also commenced chairing a joint taskforce with the NDIA and NDIS Quality and Safeguards Commission.
While conduct impacting First Nations has previously been an enduring priority, 2024 marks the first time the ACCC will establish a dedicated First Nations coordination, outreach and advocacy team to inform and align all ACCC activities regarding conduct that impacts on First Nations Australians.
Product safety remains an enduring priority for the ACCC, and incorporates supplier outreach and consumer education programs alongside its compliance and enforcement toolkit. In 2024-25 the safety of young children will be a key focus of the ACCC’s product safety group – in particular nursery products including furniture, infant self-feeding products, and infant sleep products.
We look forward to updating you throughout the year on how the ACCC is progressing against its priorities.
