In Touch: What's happening in Australian competition and consumer law

The latest in competition and consumer law 6 min read

A greener future: final sustainability collaborations guide released by the ACCC 

On 18 December 2024, the ACCC released its final guide on sustainability collaborations.

The guide is intended to alert businesses of when competition law risks may arise when considering sustainability collaborations (and when they are unlikely to do so), as well as the exemptions that may be available for collaborations in the public interest.

The ACCC has sought to clarify its views on the operation of competition laws for such collaborations, acknowledging the importance of ensuring that businesses do not unnecessarily limit participation in lawful sustainability collaborations.

The guide includes a 5 step checklist for businesses considering sustainability collaborations to help assess whether competition laws are likely to apply.

Updates to the immunity policy for cartel conduct

On 18 December 2024, the ACCC announced that it had updated its 'ACCC immunity and cooperation policy for cartel conduct' (the Immunity Policy).

The updates are intended to increase transparency about how the Immunity Policy is administered by the ACCC, and to update and clarify the requirements for immunity applicants.

It is now a criteria for corporate conditional immunity (and corporate derivative conditional immunity) from ACCC-initiated civil proceedings that the corporation has implemented measures, or undertaken to implement measures, to mitigate the risk of future non-compliance with the CCA.

The updated policy also confirms that, at the proffer stage, the ACCC will not generally permit representatives of an immunity applicant to attend ACCC interviews with a derivative immunity applicant. The ACCC will provide the immunity applicant with sufficient information to enable it to:

• understand how its immunity application is progressing; and
• identify and provide further material relevant to its immunity application.

However, the ACCC will not otherwise disclose to the immunity applicant or its legal representatives the questions asked or the evidence given by a derivative immunity applicant.

ACCC alleges price fixing cartel against Defence contractors and senior executives 

In December 2024, the ACCC commenced civil cartel proceedings in the Federal Court against Spotless Facility Services (Spotless), Ventia Australia (Ventia) and four senior executives for alleged price fixing in relation to the supply of estate maintenance and operation services to the Department of Defence (Defence).

Spotless and Ventia provide services to major Defence force bases under billion-dollar contracts. The ACCC alleges that, on three occasions between April 2019 and August 2022, Spotless and Ventia made or attempted to make arrangements or understandings containing provisions that had the purpose, effect or likely effect of fixing, controlling or maintaining the price at which Spotless, Ventia and a third company, BGIS, would supply these services to Defence. Spotless and Ventia are also alleged to have given effect to some of these arrangements or understandings.

The three arrangements or understandings are alleged to have involved:

• the exchange of text messages about what BGIS and Spotless would charge Defence;
• communications between Spotless, Ventina and BGIS regarding seeking additional compensation from Defence; and
• meetings in which one of the senior executives said words to the effect that Spotless, Ventia and BGIS should jointly ask Defence to pay a project management fee.

The ACCC is seeking declarations, civil penalties, and costs against Spotless and Ventia and the four senior executives, as well as qualification orders against three of the senior executives.

Viva Energy's proposed acquisition of LOC Global not opposed subject to divestiture

On 12 December 2024, the ACCC confirmed that it will not oppose (subject to undertakings) Viva Energy Group's (Viva) proposed acquisition of the remaining 50% interest in LOC Global (LOC) from New World Corporation (NWC).

LOC is a joint venture between Viva and NWC (with a 50% stake each) that operates over 100 'Liberty' branded retail fuel and convenience sites across Australia. Viva conducts downstream fuel refining, importing, distribution and marketing in Australia. It is also the exclusive supplier of Shell-branded fuels and lubricants in Australia. Viva Energy and LOC overlap in the supply of retail fuel across metropolitan and/or regional locations in local markets across SA, Victoria, WA, NSW, Queensland and NT.

In the absence of the undertaking, the ACCC was concerned that the proposed acquisition would reduce competition in certain local areas in Adelaide, Darwin, regional Queensland and regional Victoria, where LOC and Viva Energy compete closely and where there are few remaining competitors to constrain Viva.

Viva committed to divest 14 retail fuel and convenience sites to Solo Oil Corporation (a wholly owned subsidiary of NWC).

Furniture frenzy: Koala Living fined for false and misleading statements about consumer rights 

Koala Living has paid a $56,340 fine after being issued three infringement notices by the ACCC for making false and misleading statements regarding consumers' rights under the consumer guarantees and available remedies for faulty products.

Koala Living has admitted to incorrectly informing consumers that:

• remedies for faulty products were only available within a 72-hour period after purchase or the period of the manufacturer's warranty;
• Koala Living could independently determine the type of remedy provided for minor or major faults; and
• delivery charges were not refundable.

The ACCC's investigation was initiated in response to consumer complaints. Koala Living has given a court-enforceable undertaking under which Koala Living has committed to:

• provide additional compensation (amounting to 20% of the purchase price) to consumers to whom Koala Living represented that a consumer's right to seek remedies for faulty products was limited to 72 hours and have not yet received a remedy;
• establish a competition and consumer law compliance program and review and update its internal policies, procedures, complaints handling practices and training to ensure ACL compliance; and
• publish corrective notices.

Cleared for takeoff: Virgin and Qatar granted ACCC interim authorisation for cooperative conduct

On 29 November 2024, the ACCC granted interim authorisation to Virgin Australia (Virgin) and Qatar Airways (Qatar) to engage in cooperative conduct under an integrated alliance. Subject to certain exceptions:

• Qatar will become Virgin's exclusive interline, codeshare and loyalty partner headquartered in the Middle East or Türkiye; and
• Virgin will become Qatar's exclusive interline, codeshare and loyalty partner headquartered in Australia.

The ACCC has granted interim authorisation to allow Virgin and Qatar enough lead time to undertake the necessary planning discussions, marketing, selling and system alignment to permit Virgin to commence flying the new services by June 2025 if authorisation is ultimately granted.

Virgin and Qatar have provided a court-enforceable undertaking under which they have committed to:

• offering tickets to the new service as 'subject to regulatory approval' to ensure consumers are made aware of the nature of the tickets they are purchasing; and
• if authorisation is not ultimately granted, re-accommodate passengers who purchased tickets for the new service during the period of interim authorisation.

Interim authorisation remains in place until it is revoked, the application for authorisation is withdrawn, or the date the ACCC’s final determination comes into effect. A draft determination from the ACCC is expected in February 2025, with the final determination expected in March-April 2025. The parties are seeking authorisation for five years.