Key areas of focus for the year ahead
A number of industries and issues are in the spotlight following the release of the ACCC's 2022/2023 Enforcement and Compliance Priorities by Chairman Rod Sims on 3 March.
'Green' claims, misleading conduct online, disruptions to supply chains, exclusive contracting, digital platforms and essential services will all be a focus in 2022/2023. The ACCC is also advocating for significant changes to the consumer law and the current merger regime.
Industry in focus
The ACCC will focus on a number of key industries:
- Competition issues in financial services, with a focus on payment services.
- Competition and consumer issues in digital platform markets, such as payments, search, apps and adtech.
- Pricing and selling of essential services, particularly in energy and telecommunications.
The ACCC will also be monitoring the government reinsurance pool to ensure it is working effectively and as intended.
What happened in 2021/22
- Digital platforms: The ACCC published interim reports in its Digital Platform Services Inquiry, focusing on app marketplaces, browsers and search services and choice screens.
- Payment services: The ACCC accepted an undertaking from Visa following concerns that Visa was limiting competition in relation to debit card acceptance through its dealings with large merchants.
- Energy: Enforcement action taken against energy retailers for false representations regarding energy plans and breaches of the Electricity Retail Code.
Competition enforcement
- The ACCC will focus on exclusive arrangements (including MFNs) by firms with market power, especially those that restrict access to goods or services or hamper new entry.
- Disruptions to global and domestic supply chains caused by the COVID-19 pandemic will be in focus. The ACCC will work with international counterparts to detect conduct such as price fixing and market sharing.
- Cartel conduct remains a priority, with a number of investigations on foot and six cartel matters currently before the Court.
What happened in 2021/22
- Criminal cartels: CDPP has dropped its prosecutions against CFMMEU and Citibank, Deutsche Bank and ANZ. Country Care was acquitted by a jury in first defended case.
- Substantial lessening of competition: TasPorts admitted to misusing market power. The ACCC has appealed the Federal Court's decision to dismiss its case against NSW Ports.
- Mergers: ACCC is investigating Qube’s completed acquisition of Newcastle Agri Terminal for potential breaches of merger control laws.
Consumers and small business
- The ACCC will focus on misleading environmental claims, especially 'green credentials' in relation to consumer goods and 'carbon neutral' claims in relation to production processes.
- Marketing practices in the digital economy will be under scrutiny, eg false scarcity reminders and manipulation of online reviews and search results.
- Enforcement in consumer guarantees remains a priority (particularly in relation to motor vehicles and caravans).
- The ACCC’s key product safety focus will be button batteries and children’s products.
- The ACCC will continue to focus on small business (especially agriculture and franchising), including through enforcement of industry codes.
What happened in 2021/22
- Penalties: Telstra and AIPE ordered to pay penalties ($50m and $153m respectively) for systemic unconscionable conduct.
- Digital practices: Proceedings commenced against Google and Facebook for misleading consumers about use of their data.
- Small business: Megasave and Jump Swim ordered to pay penalties for making false or misleading representations to franchisees.
- Consumer guarantees: The Federal Court found that Mazda misled nine consumers about their consumer rights.
Reforms & advocacy
The ACCC is advocating for:
- an unfair trading practices prohibition;
- making breaches of the consumer guarantees illegal;
- a national safety provision;
- reforms to the merger control regime; and
- legislative reform to address concerns about the dominance of digital platforms.
What happened in 2021/22
- Unfair contract terms: Proposed amendments to the unfair contract terms regime, including to make unfair terms illegal, are currently before Parliament.
- Franchising Code: Amendments to the Franchising Code to strengthen protections for franchisees came into effect.
- Product safety enforcement: The ACCC commenced proceedings against Decathlon Australia and Mercedes-Benz Australia for failing to comply with product safety obligations.
Impact of COVID-19
The ACCC will continue to monitor for consumer and fair trading issues relating to the COVID-19 pandemic, eg the ACCC will:
- seek to address any issues being faced by consumers seeking to redeem vouchers for cancelled services;
- continue to work with industry to ensure a return in consumer confidence, especially in hard-hit industries such as travel; and
- continue to monitor the domestic aviation sector to identify any behaviour in the industry that may be damaging competition.
What happened in 2021/22
- Authorisations: The ACCC granted a number of authorisations in a range of industries to enable limited industry coordination in response to the pandemic.
- Refunds: ACCC engaged with industry seeking refunds for consumers for cancelled travel and other events.
- Health-related claims: Lorna Jane was ordered to pay $5m in relation to false or misleading claims about its 'Anti-Virus Activewear.' Mosaic Brands also paid penalties for false or misleading claims regarding its pandemic-related 'Health Essential Products'.