13 March 2024
8 min read
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In its 2024-25 Compliance and Enforcement Policy and Priorities report, the Australian Competition and Consumer Commission (ACCC) has highlighted a focus on the net zero transition, ongoing digital transformation and the significant impact of cost of living pressures across the community.
Businesses are encouraged to stay informed about the sectors and conduct the ACCC will concentrate their resources on in the coming financial year.
Supermarkets
With the rising cost of living, the ACCC recognises that Australian consumers are increasingly vulnerable to the impacts of anti-competitive behaviour. In this financial year, the ACCC will prioritise competition, fair trading, consumer protection and pricing issues in the supermarket sector, with a focus on food and groceries.
The Government has directed the ACCC to conduct a 12-month price inquiry into competition within the supermarket and grocery sector. The inquiry has commenced with the release of an issues paper and online consumer survey.
The regulator is also looking into reports from consumers alleging false or misleading “was/now” or other pricing “specials” advertised by the supermarkets and whether they may raise concerns under the Australian Consumer Law.
Essential services
Enforcing new gas market regulation remains a priority for the ACCC in 2024-25 after the Competition and Consumer (Gas Market Code) Regulations 2023 commenced on 11 July 2023 with the aim of ensuring the domestic wholesale gas market supplies adequate gas at reasonable prices and on reasonable terms for both suppliers and buyers.
Banking – retail deposits
Following last year’s retail deposits inquiry, the regulator will maintain a focus on supporting competition in financial services in 2024-25. The inquiry found that competition for retail deposit customers is often selective and opaque.
In particular, the inquiry found that relatively few consumers switch their transaction accounts, savings accounts and term deposits, because they face significant challenges in search for, comparing and switching these retail deposit products. A number of reforms have been recommended to improve transparency, clarity of terms and conditions and lead to better outcomes for consumers.
Aviation
After being reinstated to its role in monitoring the airline industry, the ACCC has found that rates of cancellation and delay remain above long term averages and that Australia stands at a critical point for increased competition with the entry of a fourth airline group competitor and more than two competing airlines on one in two domestic routes.
Accordingly, the regulator has vowed to look closer and follow through on allegations of anti-competitive behaviour and unfair business practices within the industry.
Environmental claims and sustainability
Businesses seeking to capitalise on changing consumer preferences for products and services that prioritise positive environmental impact or greenwashing will need to ensure any marketing claims are accurate, substantiated and aligned with the understanding of the ordinary and reasonable consumer.
In the first public outcome following the announcement of this priority, the ACCC accepted a court enforceable undertaking from MOO Premium Foods Pty Ltd in relation to false and misleading representations regarding “ocean plastic” claims made about its yoghurt product packaging.
With the ACCC on red alert for greenwashing and a number of in-depth greenwashing investigations underway, including in the energy and consumer products sectors, businesses should review the ACCC’s principles-based guidance to ensure their environmental claims are clear and accurate.
Digital economy and platforms
Manipulative and deceptive practices in connection with digital services will continue to be a key priority for the ACCC.
With influencer marketing, online review and comparison tools key to reaching consumers and persuading them to choose particular products and brands, they have become tools for some businesses to manipulate and influence consumers decisions.
This was clear when ACCC conducted a sweep to identify misleading testimonials and endorsements by social media influencers, with 80 per cent of influencer posts raising concerns from consumers and more than a third of assessed businesses engaging in concerning conduct regarding their online product reviews.
The ACCC will also be looking closely at price comparison websites and the video gaming industry, in particular in-app purchases.
Unfair contract terms
After long advocating for the introduction of penalties for unfair contract terms in standard form contracts, the ACCC welcomed the passing of the Treasury Laws Amendment (More Competition, Better Prices) Bill 2022 (Cth) in the federal parliament last year.
These updated penalties are now in place. However, the ACCC is continuing to see businesses using standard form agreements that contain unfair contract terms and has undertaken a review of a range of standard form agreements with matters currently under investigation.
Consumer guarantees
After recent success against Mazda, where the company was ordered to pay $11.5 million in penalties for making 49 separate false or misleading representations to the nine consumers who had experienced recurring and serious faults with their Mazda vehicles within two years of purchase, the ACCC has been emboldened to take similar action in 2024-25.
The regulator has a number of active investigations and other matters before the court dealing with similar misconduct including against Grays eCommerce Group Limited in relation to the descriptions of cars for sale; EnergyAustralia for electricity price information and eHarmony for online dating membership statements.
The ACCC has also announced it will continue to examine the automotive and caravan sector and expand its enforcement focus to the consumer electronics sector.
However, the regulator noted that while improving compliance by businesses with the consumer guarantee regime was important, there was a need consider what more could be done. The ACCC advocated for reforms to strengthen the laws, including for the failure to honour consumer guarantees to be a contravention of the ACL and incur penalties.
National Disability Insurance Scheme (NDIS)
The ACCC has vowed to improve compliance by NDIS providers with their obligations under the ACL.
To achieve this, the regulator has commenced chairing a joint taskforce comprising the NDIS Quality and Safeguards Commission and the National Disability Insurance Agency. Furthermore, the ACCC has committed additional resources to identify and act on consumer law matters that may arise from the conduct of NDIS providers.
Enduring priorities
In addition to its annual compliance and enforcement priorities, the ACCC considers some priorities particularly important to ensure consumer welfare and competitive processes, including combatting scams, protecting consumers experiencing vulnerability or disadvantage; addressing conduct impacting First Nations Australians and ensuring code compliance for small businesses.
Cartel conduct
Taking action on cartel conduct remains at the heart of the ACCC’s role as a competition enforcement agency.
In the past year the ACCC has achieved notable successful in cartel proceedings in both civil and criminal cases across steel manufacturing, professional services and waste processing.
For example, last month Bingo Industries was fined $30 million and Aussie Skips was fined $3.5 million after each company pleaded guilty to having engaged in cartel conduct that led to increased prices for the supply of skip bins and the provision of waste processing services for building and demolition waste in Sydney.
Anti-competitive conduct
The ACCC has vowed to continue to take enforcement action in relation to anti-competitive agreements and misuse of market power.
Late last year the ACCC received the largest ever penalty for resale price maintenance. Power tool supplier Techtronic was ordered to pay penalties totalling $15 million for price maintenance conduct in relation to Milwaukee branded products.
The ACCC’s case against Mastercard alleging misuse of market power is ongoing.
Stay off the ACCC’s radar
The 2024-25 priorities are relevant for public sector entities, private businesses and consumers to understand their legal rights and obligations. They are particularly useful when businesses are keen to ensure they are doing the right thing.
In her recent address, ACCC Chair Ms Cass-Gottlieb noted that 2024 marked the 50th anniversary of the Trade Practices Act – now the Competition and Consumer Act (CCA) – and reaffirmed the ACCC’s commitment to enhancing the welfare of Australian consumer:
“We recognise the importance of strong enforcement outcomes in achieving specific and general deterrence of conduct prohibited by the Act and in ensuring that consumers, business and the wider community continue to have confidence in our market economy.”
The maximum pecuniary penalties for CCA contraventions by corporations increased to $50 million and to 30 per cent of a corporation’s annual turnover over the period the breach occurred (whichever is greater) for certain competition law and consumer law breaches. Maximum fines for individuals who engage in anti-competitive conduct and breaches of the consumer law protections have also increased from $500,000 to $2.5 million.
It is therefore important to be familiar with these compliance and enforcement priorities and know where to seek help.
Our team can assist you in understanding your legal rights and obligations, staying up to date with any impending changes to the law or providing advice that may address emerging issues by:
If you have any questions or would like to get in touch, please contact a member of our team below.
Disclaimer
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this article is accurate at the date it is received or that it will continue to be accurate in the future.
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