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As part of the ACCC’s annual CEDA address, Gina Cass-Gottlieb reflected on her first 12 months as Chair of the Australian Competition and Consumer Commission (ACCC) and outlined the ACCC’s compliance and enforcement priorities for 2023-24.

In her address Ms Cass-Gottlieb highlighted the ACCC’s litigation and broader enforcement focus for the next 12 months. This year, the Chair made clear that the ACCC will focus on potential market interventions in the key sectors which impact consumers including energy, telecommunications as well as a continued focus on digital platforms. Many priorities reflect a continuation of the ACCC’s work and its prior focus under prior Chair Rod Sims. Ms Cass-Gottlieb commented positively on this consistency of approach.

Our key take-aways from the ACCC’s 2023-24 enforcement priorities are:

  1. Cost of living issues, exacerbated by inflation and global market disruptions, underpin the ACCC’s enforcement and policy agenda.
  2. The ACCC’s continued focus on energy, financial services, telecommunications and digital platforms, including:
    • increasing transparency in the pricing and selling of energy and telecommunication services;
    • promoting competition in the financial services sector and investigating anti-competitive conduct; and
    • addressing harms in the digital sector, including misleading online advertising and marketing practices and conduct that entrenches the market power of digital platforms.
  3. The ACCC is addressing competition and pricing issues in gas markets as a new priority, including compliance with the emergency price cap and the introduction of a mandatory code of conduct. These initiatives will account for a “substantial portion” of the ACCC’s compliance and enforcement effort in the energy sector.
  4. The ACCC has renewed its ESG and greenwashing focus. In particular, the ACCC is concerned with environmental claims that are misleading and deceptive. To support those efforts the ACCC has established a sustainability focused internal taskforce. The ACCC Chair commented on the ACCC’s recently conducted desktop review of websites and reported concerns particularly in relation to the cosmetics, clothing, footwear, food, and beverage sectors. This review will inform the foreshadowed release of ACCC guidance materials on greenwashing issues. Ms Cass-Gottlieb also commented during her speech that the ACCC is alive to the potential for anti-competitive conduct in relation to ESG initiatives.
  5. The ACCC will focus on compliance with and enforcement of the new unfair contract terms prohibition, which comes into effect in November 2023. The ACCC reiterated its calls for law reform, including that a business will contravene the consumer law where it does not comply with its consumer guarantee obligations and for a new economy-wide ban on unfair trading practices. On general merger law reform, the Commission expects to decide on its proposals to Government in the coming months. 
  6. The ACCC remains focused on protecting consumers online, particularly in digital and online markets. Scam detection and disruption was noted as a priority. In this regard, the ACCC has also called on digital platforms, telecommunications businesses and the finance services sector to do more to prevent scams from affecting consumers.

Compliance and Enforcement Priorities for 2023-24

The ACCC’s latest enforcement priorities, the first announced by Ms Cass-Gottlieb, reflect an evolution of the existing enforcement priorities. These priorities continue to be important areas of focus for the ACCC due to significant economic changes during the last 12 months and the pressure these changes have placed on Australian consumers.

The ACCC’s new priorities focus on scam prevention and disruption, enforcement of the recently passed unfair contract terms prohibition, and competition and pricing issues in gas markets. Thematically, cost of living issues have replaced COVID-19 as a driving focus for certain ACCC priorities.

The ACCC’s latest enforcement priorities, the first announced by Ms Cass-Gottlieb, reflect an evolution of the existing enforcement priorities. These priorities continue to be important areas of focus for the ACCC due to significant economic changes during the last 12 months and the pressure these changes have placed on Australian consumers.

The ACCC’s new priorities focus on scam prevention and disruption, enforcement of the recently passed unfair contract terms prohibition, and competition and pricing issues in gas markets. Thematically, cost of living issues have replaced COVID-19 as a driving focus for certain ACCC priorities.

Continuing priorities

Environmental claims and sustainability

  • A key ACCC enforcement priority is consumer, product safety, fair trading and competition concerns in relation to environmental claims and sustainability.
  • The ACCC continues to focus on greenwashing and environmental claims, including the establishment of an internal taskforce focused on sustainability.
  • The ACCC recently published its findings of an internet sweep of environmental claims, highlighting that 57% of businesses reviewed in the sweep made concerning claims about their environmental credentials.
  • The ACCC has already commenced investigations for alleged misleading environmental claims, which may grow as they conduct more targeted assessments of claims.
  • Particular sectors about which the ACCC has concerns include the cosmetics, clothing and footwear, and food and beverage sectors.
  • Issues of sustainability are of concern to certain consumers, who often face claims made by businesses that are vague and/or unable to be verified.
  • The taskforce will also examine competition issues arising during the transformation to a greener economy. 

Pricing and selling practices of energy and telecommunications 

  • The ACCC has highlighted consumer and fair trading issues arising from the pricing and selling of essential services, such as telecommunications and energy, as a key compliance and enforcement priority.
  • The ACCC remains concerned about a lack of transparency in the pricing of services such as electricity and telecommunications, particularly considering increased cost of living pressures. 
  • As the law now requires electricity retailers to pass on significant reductions in wholesale electricity costs, the ACCC will be actively monitoring costs and retailer’s responses.

Financial services, including payments

  • The ACCC has highlighted that promoting competition and investigating allegations of anti-competitive conduct in the financial services sector, with a focus on payment services, remains a key compliance and enforcement priority.
  • This priority arises in the context of current cost of living pressures and rising interest rates.
  • The ACCC also noted that, at the request of the Treasurer, it has commenced a price inquiry into retail deposit pricing. 

Consumer and fair trading issues in the digital economy

  • The ACCC has noted that consumer and fair trading issues relating to manipulative or deceptive advertising and marketing practices in the digital economy remains a key enforcement and compliance priority.
  • In January 2023, the ACCC announced it commenced an internet sweep to identify misleading testimonials and endorsements by social media influencers, including on Instagram, TikTok, Snapchat, YouTube, Facebook and Twitch.
  • The ACCC has indicated it is considering the role of other parties, such as advertisers, marketers, brands and social media platforms, in facilitating misconduct by social media influencers.

Digital platforms

  • A key ACCC compliance and enforcement priority is competition and consumer issues relating to digital platforms.
  • The fifth interim report for the Digital Platform Services Inquiry released in November 2022 (Fifth Interim Report) provided various recommendations to address harms caused by digital platforms, including service-specific mandatory codes of conduct.
  • The Fifth Interim Report also reinforced the ACCC’s support for an economy-wide ban on unfair trading practices, including those involving digital platforms.

Global and domestic supply chains

  • The ACCC has noted that competition and consumer issues in global and domestic supply chains, with a focus on transport and logistics, remain a key compliance and enforcement priority.
  • The ACCC has changed its focus in this space, from disruptions caused by COVID-19 to a more general focus on transport and logistics.
  • This priority also reflects the Productivity Commission’s recently published report examining the performance of Australia's maritime logistics system, long-term trends in system performance, competition, industrial relations, infrastructure constraints and technology uptake.

Market power and exclusivity

  • Exclusive arrangements by firms with market power that impact competition remain a key compliance and enforcement priority of the ACCC.
  • Following successful enforcement action, the ACCC remains concerned about the competitive harm that can be occasioned by exclusive arrangements, including increased barriers to entry or anti-competitive foreclosure of rivals.   

Protecting small businesses

  • Ensuring that small businesses receive the protections of the competition and consumer laws and industry codes of conduct, including in agriculture and franchising, remain a key ACCC compliance and enforcement priority.
  • The ACCC will continue to monitor and enforce compliance with industry codes of conduct in the franchising, dairy and horticulture sectors, which it will continue to monitor and enforce as necessary. 

Consumer product safety for children’s products

  • Consumer product safety issues for young children, with a focus on compliance, enforcement and education initiatives remain a key ACCC compliance and enforcement priority.
  • This priority has seen 43 recalls of children’s products in the last year, affecting a total of 177,000 items.
  • The ACCC will continue to focus on high-risk safety issues, including products containing button batteries, products designed for and used when young children are sleeping, children’s toys, and household hazards.

Consumer guarantees

  • A key ACCC compliance and enforcement priority remains empowering consumers and improving industry compliance with consumer guarantees, with a focus on high value goods, including motor vehicles and caravans.
  • The ACCC confirmed its number one consumer complaint is how to enforce rights when a product or service is faulty.
  • Given the volume of complaints it receives, the ACCC renewed its call for law reform to make a businesses’ non-compliance with their consumer guarantees obligations a breach of the consumer law. 

New priorities

Wholesale gas markets regulation

  • The ACCC has highlighted competition and pricing issues in gas markets, including compliance with the price cap order and other legal obligations for wholesale gas markets as a key compliance and enforcement priority.
  • The Federal Government’s Treasury Laws Amendment (Energy Price Relief Plan) Act 2022 (Cth) (the Act) and the Gas Market Emergency Price Order, which came into effect late last year, imposes a $12 per gigajoule gas cap in the short-term (Emergency Price Cap), and imposes additional restrictions on gas sales going forward. The Act also allows for the introduction of a mandatory code of conduct for gas producers.
  • The ACCC is responsible for enforcing the Emergency Price Cap. It will prioritise compliance with the Emergency Price Cap and, once developed, the mandatory code of conduct. The ACCC expects this priority will account for a substantial share of its compliance and enforcement effort in the energy sector.
  • In its Gas Inquiry 2017-2030 Interim Report published in January, the ACCC indicated it will commence a review of the operation and impact of the Gas Market Emergency Price Order in June.
  • The ACCC has also recently published an updated version of its Interim Compliance and Enforcement Guidelines for the Emergency Price Cap on 3 March.

Unfair contract terms

  • The ACCC will prioritise compliance and enforcement with the new prohibition on unfair contract terms (UCT) in consumer and small business contracts, which comes into force in November 2023.
  • The UCT regime is backed by newly increased penalties which are the greater of:
    • $50 million;
    • three times the value of the benefit obtained; or
    • 30% of the company’s adjusted turnover during the breach turnover period for the offence
  • This new priority also follows the Federal Court judgment declaring 38 contract terms used in contracts entered into by Fujifilm Business Innovation Australia or Fujifilm Leasing Australia with thousands of small businesses as unfair.

Scams

  • A key ACCC compliance and enforcement priority is scam detection and disruption, supporting the implementation of the National Anti-Scam Centre.
  • The ACCC calls on digital platforms and the telecommunications sector to do more to stop scammers reaching consumers, including:
    • new notice-and-action requirements;
    • stronger verification rules for business users and reviews; and
    • new minimum standards for dispute resolution processes.
  • The ACCC also calls on financial services businesses to do more to prevent scammers accessing money from victims, including the implementation of payee confirmation functionality. 

Enduring priorities

The ACCC also confirmed it will maintain its enduring priorities, which are:

  1. cartel conduct;
  2. anti-competitive conduct;
  3. product safety;
  4. customers experience vulnerability or disadvantage; and
  5. conduct impacting First Nations consumers.

Key contacts

Linda Evans photo

Linda Evans

Regional Head of Practice – Competition, Regulation and Trade, Australia, Sydney

Linda Evans
Sarah Benbow photo

Sarah Benbow

Partner, Melbourne

Sarah Benbow
Patrick Clark photo

Patrick Clark

Partner, Melbourne

Patrick Clark
Patrick Gay photo

Patrick Gay

Partner, Sydney

Patrick Gay
Stephanie Panayi photo

Stephanie Panayi

Partner, Sydney

Stephanie Panayi
Paul Burton photo

Paul Burton

Senior Associate, Sydney

Paul Burton
Philip Aitken photo

Philip Aitken

Senior Associate, Melbourne

Philip Aitken

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