In February 2021 the Australian Competition and Consumer Commission (‘ACCC’), the agency responsible for enforcement of competition, consumer and product safety laws in Australia issued its 2021 Compliance and Enforcement Policy and Priorities [i]. The ACCC’s focus is again on product safety consumer protection and competition issues, particularly in the context of the COVID-19 pandemic [ii].
The 2021 ACCC Compliance and Enforcement Priorities identify the following key areas which will be the subject of ACCC scrutiny in 2021:-
- consumer issues related to the promotion and sale of products in the context of the COVID-19 pandemic, such as travel and event cancellations
- consumer issues in the context of the COVID-19 pandemic including the domestic air travel market;
- competition and consumer issues in the funeral services sector;
- competition and consumer issues relating to digital platforms;
- competition and consumer issues arising from the pricing and selling of essential services, with a focus on energy and telecommunications;
- promoting competition and investigating allegations of anti-competitive conduct in the financial services sector;
- conduct affecting competition in the commercial construction sector, focussing on large public and private projects and conduct affecting small business;
- ensuring small businesses receive the protections of the competition and consumer laws, including franchising;
- ensuring compliance with mandatory industry codes of conduct in the agriculture sector – that is, the Dairy Code of Conduct and the Horticulture Code of Conduct;
- improving retailers’ and manufacturers’ compliance with consumer guarantees, with a focus on high value goods including motor vehicles and caravans;
- the implementation of new safety standards for button batteries, with a focus on promoting compliance through education;
- ensuring and enforcing compliance with the new quad bike safety standard including through education and surveillance activities.[iii].
The ACCC is unable to pursue all matters that come to its attention, Rather, it will prioritise those matters which come within the current priority areas, while giving particular consideration to matters which also involve factors such as:-
- conduct that is of significant public interest or concern;
- conduct that results in substantial consumer or small business detriment;
- national conduct involving large traders – with the potential for greater consumer detriment;
- conduct involving a significant new or emerging market issue;
- where the ACCC’s action will assist to clarify aspects of the law or new provisions of the Competition and Consumer Act 2010 (‘the Act’).[iv]
ACCC Compliance and Enforcement Strategy
The ACCC has available a range of compliance and enforcement tools to encourage compliance with the Act, from which the ACCC selects according to which tool(s) will assist it to achieve the best outcome for the community while managing the risk proportionately.[v]
In particular, and to achieve its compliance objectives, the ACCC uses “four flexible and integrated strategies” [vi], namely:-
- Encouraging compliance with the law – including [vii]:-
- by educating and informing consumers, businesses and traders about their rights and obligations under the Act;
- by raising awareness about scam conduct, sharing intelligence and working with government and the private sector to reduce opportunities for scams to occur;
- by maintaining relationships with industry groups and associations – assisting them to understand the Act including by giving presentations and hosting webinars and providing general guidance to industries seeking to develop their own voluntary codes of conduct that seek to apply the requirements of the Act; and
- through research and advocacy – including by conducting in-depth market, sector or industry reviews into potential new or emerging competition and consumer policy issues, in line with priority areas.[viii]
- Enforcement of the law – including[ix]:-
- through administrative resolution;
- issuing of infringement notices, for alleged contravention of the Act;
- resolving contraventions of the Act by accepting from traders or individuals court enforceable undertakings under section 87B of the Act in which they agree to remedy the harm caused, accept responsibility for their actions and establish, review or improve processes and procedures to improve their compliance with the Act; and
- through litigation/court action, which the ACCC takes if it considers, having regard to all the circumstances, that it is the most appropriate way to achieve the ACCC’s compliance objectives[x];
- Initiating/undertaking market studies [xi]– including at the direction of the Minister – which can assist the ACCC to identify:-
- risks to consumers and the competitive process requiring intervention by the ACCC;
- any market failures and how to address them;
- Working with other agencies to implement these strategies [xii]– including, for example, state and territory consumer regulators which carry out the compliance and enforcement of the Australian Consumer Law.
For Further Information contact:
Katarina Klaric
Principal
Stephens Lawyers & Consultants
Suite 205, 546 Collins Street
Melbourne VIC 3000
Phone: (03) 8636 9100
Fax: (03) 8636 9199
Email: [email protected]
Website: www.stephens.com.au
All Correspondence to:
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Disclaimer: This update is not intended to replace obtaining legal advice
Authored by Rochina Iannella, Lawyer, Stephens Lawyers & Consultants, 4 May 2021
Copyright May 2021 — Stephens Lawyers & Consultants
[i] ACCC, ACCC 2021 Compliance and Enforcement Policy and Priorities, February 2021; https://www.accc.gov.au/about-us/australian-competition-consumer-commission/compliance-enforcement-policy-priorities#2021-priorities
[ii] Ibid.
[iii] ACCC, 2021 ACCC Compliance and Enforcement Priorities, February 2021, p 1; https://www.accc.gov.au/system/files/2021%20Compliance%20and%20Enforcement%20Priorities.pdf
[iv] ACCC, ACCC 2021 Compliance and Enforcement Policy and Priorities, February 2021, p.4
[v] ACCC, ACCC 2021 Compliance and Enforcement Policy and Priorities, February 2021, p.3
[vi] Ibid.
[vii] ACCC, ACCC 2021 Compliance and Enforcement Policy and Priorities, February 2021, p.5
[viii] ACCC, ACCC 2021 Compliance and Enforcement Policy and Priorities, February 2021, p.6
[ix] Ibid.
[x] ACCC, ACCC 2021 Compliance and Enforcement Policy and Priorities, February 2021, p.7
[xi] ACCC, ACCC 2021 Compliance and Enforcement Policy and Priorities, February 2021, p.6
[xii] ACCC, ACCC 2021 Compliance and Enforcement Policy and Priorities, February 2021, p.8