The ACCC will focus its enforcement efforts on issues including:
- consumer and fair trading issues arising from the pricing and selling of essential services with a focus on energy and telecommunications;
- competition and pricing issues in gas markets, including compliance with the recently-applied price cap order and other legal obligations for wholesale gas markets;
- unfair contract terms in standard form consumer and small business contracts;
- promoting competition and investigating allegations of anti-competitive conduct in the financial services sector, with a focus on payment services;
- competition and consumer issues in global and domestic supply chains, with a focus on transport and logistics;
- consumer product safety issues for young children, with a focus on compliance, enforcement and education initiatives;
- the ACCC will also lobby the Federal Government to adopt a general law prohibiting unfair trading practices, and reinvigorate its previous calls to reform Australia's merger control regime, including possibly to require mandatory merger filings; and
- scam detection and disruption, including to support the implementation of the National Anti-Scam Centre.
Preparing for the year ahead in competition and consumer law enforcement
Ms Cass-Gottlieb's address is largely consistent with the ACCC's existing priorities in recent years, albeit with an increased focus on pricing activity due to rising cost of living pressures.
To prepare for this year's priorities, businesses that operate in Australia should:
- keep an eye out for developments in relation to ongoing whole-of-government priorities with respect to tackling cost of living challenges;
- ensure that they have carefully reviewed their standard form agreements to ensure compliance with new unfair contracts legislation - with the prohibition and penalty regime to commence later in 2023;
- have a strong factual basis to support any green or other ESG claims; and
- ensure that they have strong compliance programs, and obtain legal advice where necessary.
Firms with market power in any sector should also continue to look carefully at their pricing structures and any exclusive arrangements. We also expect to see the ACCC's position on merger clearance reform put the Government at some point this year.
Competition law enforcement priorities
Price rises and anti-competitive conduct in industries which affect Australian households' bottom line should expect firm scrutiny from the ACCC in 2023/24. Businesses in the energy, financial services and digital platform industries will be familiar with both the ACCC's and the Federal Government's recent efforts to encourage competition and deliver better prices for consumers.
Gas Wholesalers: Regulated gas wholesalers should anticipate that the ACCC will dedicate considerable efforts to ensure compliance with the emergency gas price cap order made on 23 December 2022, which imposes a cap of $12 per gigajoule on all new contract sales for wholesale gas from existing regulated gas reserves until 23 December 2023.
Airlines, Transport and Logistics: Other industries which have been highly susceptible to global inflationary pressure and supply chain shortages, such as airlines and logistics companies, should also be prepared for greater scrutiny into their pricing practices.
Financial Services: Financial services businesses should also be aware of the ACCC's inquiry into deposit interest rates announced on 15 February 2023, which will consider the nature and extent of price and non-price competition in the supply of retail deposit products.
Digital Platforms: Similarly, expect the ACCC to continue its work to address "significant" harms in the conduct of digital platforms after the release of its fifth interim report from the Digital Platform Services Inquiry (read more in our previous analysis here).
Consumer law enforcement priorities
Again, cost of living will be the underlying theme for the ACCC's consumer protection priorities in 2023. The ACCC will continue its efforts in tackling misrepresentations with respect to price, features or benefits of essential services, especially in the energy and telecommunications sectors.
Unfair Contract Terms: With the introduction of substantially larger penalties and stronger prohibitions for the use of or reliance upon unfair contract terms this year, the ACCC will take advantage of its new powers and ensure businesses update standard form contracts to comply with the new requirements.
If you haven't done so already, now is the time for consumer-facing businesses to carefully review their standard form agreements (both for consumers and business-to-business contracts), and processes for proposing or purporting to rely upon them. Tied to this change is the increased scope for small business contract protections, which greatly increases the number of commercial arrangements (that may include franchise contracts) which interact with the unfair contracts regime.
Greenwashing: After its investigations into greenwashing claims across a range of industries over the last 12 months – including a recent sweep which identified concerning claims about environmental or sustainability practices by "more than half of the businesses reviewed" – expect the ACCC to move towards an enforcement phase for ESG claims which may be misrepresentative or unsubstantiated. Greenwashing has been repeatedly identified as a high priority for the ACCC and we anticipate a high degree of cooperation between Australian and international regulatory bodies to ensure that businesses' ESG claims are genuine.
We are already seeing other Australian regulators bringing litigation in relation to ESG claims across a wide range of financial services products, and the ACCC itself has reported a number of ESG claims by businesses which it considers concerning.
Children: The ACCC is expanding its focus on the early-life industry, including through its childcare inquiry into consumer and product safety enforcement for consumer products targeted towards young children.
Social Media Advertising: The ACCC will continue its focus on digital marketing, particularly as part of its crackdown on advertising by social media influencers.
Scams: The implementation of the National Anti-Scam Centre will form part of the ACCC's focus on combating consumer scams, which Ms Cass-Gottlieb observed disproportionately impacts First Nations communities.
"Making the case" for change: Merger control reforms and unfair trading prohibition
Ms Cass-Gottlieb confirmed that the ACCC continues to support the introduction of an economy-wide prohibition on unfair trading practices in the consumer protection law, to address what the Chair described as "gaps" in the existing legal framework, including for cumbersome unsubscribe processes, limited-time offers, and "confusing online screens".
The ACCC will also shortly be sharing its views with the Federal Government on amendments to the Australian merger clearance process. This is expected to build on the ACCC's previous support for a shift to compulsory merger notification, as raised by the former ACCC Chair Rod Sims in 2021/22. During the Q&A session after her address, Ms Cass-Gottlieb confirmed that the ACCC would be "making the case" to the Government for legislative reform.