Stephens Lawyers & Consultants
The Australian Competition and Consumer Commission (‘ACCC’), the agency responsible for enforcement of competition, consumer and product safety laws in Australia has issued its 2023/24 Compliance and Enforcement Policy and Priorities[i].
Reflecting and building on the work commenced with last year’s compliance and enforcement priorities and in addition to the ACCC’s recognised ‘enduring priorities’, the ACCC will be focusing on competition/anti-competitive conduct, fair trading and consumer protection issues in the digital economy (including digital platforms and online market places), the energy, telecommunications and gas markets (including wholesale gas markets), environmental and sustainability claims, unfair contract terms and the financial services sector with a focus on payment services.[ii]
ACCC Compliance and Enforcement Priorities for 2023/24
The 2023/24 ACCC Compliance and Enforcement Priorities set out the areas which will be the subject of ACCC scrutiny in 2023/24. Some of the ACCC’s key areas of focus include:-
1. Competition, consumer and pricing issues arising from the pricing and selling of essential services, with a focus on energy, telecommunications and gas markets – including compliance with the Australian Federal Government’s emergency price cap order and other legal obligations for wholesale gas markets.
Recognising the impact of current rising cost of living on Australian consumers, the ACCC’s focus will extend to anti-competitive conduct that reduces competition in the supply of essential services – in particular, conduct which prevents consumers from making informed purchasing decisions and contributes to price escalation pressures (such as making misleading sales representations).
The ACCC will also be working with the Australian Federal Government to develop a mandatory code of conduct for gas producers and will be prioritising compliance with the cap and the mandatory code (once developed) including by monitoring and reporting on the conduct of gas market participants.
2. Consumer and fair-trading issues relating to manipulative or deceptive advertising and marketing practices in the digital economy.
In particular, conduct and practices impacting consumers and including the use of online interfaces that discourage or make it difficult to unsubscribe from a paid service, the use of a consumer’s data to exploit individual characteristics in making a sale, the manipulation of online reviews and search results through the use of algorithms, the use of comparison websites and social media influencers who fail to disclose commercial relationships and paid promotions.
3. Consumer and competition issues relating to digital platforms.
The ACCC’s focus will extend to addressing harms from digital platforms to Australian consumers, businesses and competition. Examples of these harms include “online interface design choices or “dark patterns” that exploit behavioural biases and distort consumer choice, subscription traps, and practices designed to get consumers to agree to unfavourable contract terms”[iii] – resulting in harm to consumers and reduced trust.
4. Scam detection and disruption, including through the ACCC Scamwatch service and by supporting the implementation of the Federal Government’s National Anti-Scams Centre, once established.
5. Consumer, product safety, fair trading and competition concerns in relation to environmental claims and sustainability – ‘greenwashing’
Our transformation to a greener economy means that consumers and businesses are becoming more focused on sustainability to inform their purchasing decisions – and are often prepared to pay more for good which are environmentally sustainable. The ACCC will be targeting those businesses making broad, unverifiable, claims like ‘environmentally friendly’, ‘green’, or ‘sustainable’ following the results of the ACCC’s recent internet sweep’ of company websites across a range of targeted sectors.[iv] Businesses making such claims will be obliged to back up these claims with ‘robust evidence’[v] – such as through reliable scientific reports, transparent supply chain information, reputable third-party certification or other forms of evidence.
6. Unfair contract terms in consumer and small business contracts
Businesses have until the 8th of November 2023 to review and update their standard form contracts to ensure that they are compliant with the prohibition on unfair contract terms in the Australian consumer law before the penalties apply. The ACCC will be focusing on compliance and ensuring that consumers and small businesses, including franchisees, enjoy the full benefit of these laws. [To read Stephens and Consultants’ Legal Update on the new Unfair Contract Terms Laws see HERE]
7. Ensuring small businesses receive the protections of the competition and consumer laws and small business industry codes of conduct, including in agriculture and franchising
8. Promoting competition and investigating allegations of anti-competitive conduct and ‘misuse of market power’ in the financial services sector, with a focus on payment services
Considered to be of particular importance due to the current cost of living pressures and a rising interest rate environment, the ACCC will also be focusing on how banks set interest rates for deposit products, such as savings accounts and term deposits.
9. Industry compliance with consumer guarantees provided under the Australian Consumer Law, with particular focus on motor vehicles and caravans.
ACCC Compliance and Enforcement Objectives & Strategy
While the ACCC is unable to pursue all matters that come to its attention, neither is the ACCC’s compliance and enforcement work limited to these priorities. Rather, the ACCC exercises discretion to direct resources to matters that provide the greatest overall benefit for the consumer and competition[vi] while also prioritising matters which come within the current priority areas. In addition to matters which come within the current priority areas, particular consideration is also given to matters which involve other priority 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 and the likelihood that conduct of large traders can influence other market participants;
- conduct involving a significant new or emerging market issue or where ACCC action is likely to have an educative or deterrent effect;
- whether the ACCC’s action will assist to clarify aspects of the law or new provisions of the Competition and Consumer Act 2010.[vii]
ACCC compliance and enforcement strategy
To achieve its compliance objectives the ACCC uses “four flexible and integrated strategies”[viii], namely:-
- Encouraging compliance with the law – including by educating and informing consumers, businesses and traders about their rights and obligations under the Act. Compliance activities undertaken by the ACCC can include:-
- Targeted education campaigns – to encourage compliance with the law;
- Scams prevention;
- Industry engagement – including with key industry stakeholders;
- Research and advocacy – including research into potential new and emerging competition and consumer policy issues[ix].
- Enforcement of the law – including through administrative resolution and through litigation/court action and other available formal enforcement actions;
- Undertaking market studies– including at the direction of the Minister – which can assist the ACCC to identify emerging competition and consumer issues as well as any market failures and how to address them;
- Working with other agencies to implement these strategies – including, for example, through coordinated approaches between state and territory consumer regulators which carry out the compliance and enforcement of the Australian Consumer Law.
Disclaimer: This update is not intended to replace obtaining legal advice
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© March 2023 — Stephens Lawyers & Consultants. Authored by Rochina Iannella, Lawyer, Stephens Lawyers & Consultants, 28 March 2023.
[i] ACCC, 2023-24 Compliance and Enforcement Priorities, 7 March 2023 https://www.accc.gov.au/publications/2023-24-compliance-and-enforcement-priorities
[iii] ACCC, CEDA Speech by Ms Gina Cass-Gottlieb, Chair – 7 March 2023 (at p. 9)
[iv] ACCC, Media Release, ACCC ‘greenwashing’ internet sweep unearths widespread concerning claims, 2 March 2023 – https://www.accc.gov.au/media-release/accc-%E2%80%98greenwashing%E2%80%99-internet-sweep-unearths-widespread-concerning-claims ; ACCC, CEDA Speech by Ms Gina Cass-Gottlieb, Chair – 7 March 2023 (at p. 6) – In an ‘internet sweep’ conducted by the ACCC during October/November 2022, the ACCC reviewed 247 company websites across a range of targeted sectors. Of the businesses reviewed in the sweep, 57 percent were identified as having made concerning claims about their environmental and sustainability credentials – with the cosmetic, clothing and footwear and food and drink sectors found to have the highest proportion of those concerning claims. https://www.accc.gov.au/speech/ceda-speech
[v] ACCC, CEDA Speech by Ms Gina Cass-Gottlieb, Chair – 7 March 2023 (at p. 7)
[vi] ACCC, 2023-24 Compliance and Enforcement Policy and Priorities, https://www.accc.gov.au/about-us/australian-competition-and-consumer-commission/our-priorities/compliance-and-enforcement-policy-and-priorities.