Noting the importance of the ACCC in maintaining public confidence in Australia’s market economy, ACCC Chairman Rod Sims today announced the ACCC’s 2017 Compliance and Enforcement Policy.  The Policy identifies the ACCC’s key priorities for the year ahead in promoting compliance with the Competition and Consumer Act 2010 (the Act).  The policy indicates that the ACCC will focus on misleading and deceptive practices, anti-competitive conduct and unfair contract terms, with a particular focus on large companies.

General Priorities

The Chairman announced the ACCC’s general priorities for 2017, including:

• seeking larger civil penalties that effectively deter larger companies breaching the Act;
• increased collaboration with State and territory fair trading agencies and ombudsman services, as well as specialist regulators, in the handling of consumer complaints, enabling the ACCC to focus on the core of its mandate; and
• conducting 2-3 market studies to gain a deeper understanding of industry practices and dynamics and the issues facing consumers. 

Competition Priorities

The Chairman announced the following competition priorities:

• a continued commitment to criminally prosecuting cartel conduct.  The Chairman expects further criminal cartel charges to be laid in the next couple of years.
• a renewed focus on conduct associated with anticompetitive effects (rather than the per se offences), with a particular renewed focus on price parity arrangements, in light of the High Court’s decision in Flight Centre. The Chairman also announced a renewed focus on conduct with anticompetitive effects in the energy, health, commercial construction and agricultural sectors.

Consumer and Small Business Priorities

The Chairman announced the following consumer and small business priorities:

• increased enforcement focus on unfair contract terms which, as the ACCC reported last year, are widespread in small business contracts.  These include terms which allow the larger contracting party:
  • to unilaterally vary terms in an unconstrained manner.
  • potentially broad and unreasonable powers to protect themselves against loss or damage at the expense of the small business.
  • an unreasonable ability to terminate an agreement as it suits them.
• continued enforcement of the ban on excessive debit and credit card surcharges, which presently applies to large businesses but which comes into effect for all business on 1 September 2017.
• addressing consumer dissatisfaction with broadband speeds by improving the information available to consumers and providing guidance to businesses on best practice marketing.
• increased focus on the application of the ACL’s consumer guarantees to complex products, particularly in the airline, telecommunications, and motor vehicle industries.
• increased focus on the private health insurance industry following the ACCC’s recent report on the industry, with a particular focus on ensuring that consumers are given clear and adequate notice of changes to their insurance.
• continued focus on protecting consumers from misleading and deceptive conduct by large companies, with several matters presently at trial or scheduled for trial this year.
• increased focus on commission-based sales, which have a tendency to breed misleading and unfair selling practices, as well as a closer examination of the related practice of lead generation.
• increased collaboration with major online shopping platforms and overseas regulators to ensure the safety of products sold online.

Implications

The Policy indicates that the ACCC will be particularly focused this year on enforcing the competition laws against large companies.  The rationale explained for this focus was the deterrence value across the industry was much broader, the larger the company.  The ACCC can be expected to seek higher penalties against large companies; Sims noted that while in the short term this may mean less negotiated settlements, this would be an acceptable outcome.

Many thanks to Matthew Barry (Graduate) for his assistance in preparing this Insight.