Gina Cass-Gottlieb gave her inaugural address as Chair of the Australian Competition and Consumer Commission (ACCC) to the Committee for Economic Development Australia yesterday in Sydney to deliver the ACCC's 2023-24 compliance and enforcement priorities.
Ms Cass-Gottlieb affirmed that the ACCC will continue to build on and expand on the compliance and enforcement priorities identified by her predecessor Mr Rod Sims last year. Key enforcement and compliance priorities for the ACCC in the 2023-24 financial year include:
- Energy and telecommunications and other essential services: Competition and consumer issues arising from the pricing and selling of essential services, with a focus on energy and telecommunications
- Financial services: Promoting competition and investigating allegations of anti-competitive conduct in the financial services sector, in particular payment services
- Environment and sustainability: Consumer, product safety, fair trading and competition concerns in relation to environmental claims and sustainability
- Digital platforms: Consumer and fair trading issues relating to conduct in the digital economy, including manipulative or deceptive advertising, marketing practices and anti-competitive conduct by digital platforms
- Consumer guarantees: Improving industry compliance
- Unfair contract terms in consumer and small business contracts
Ms Cass-Gottlieb also confirmed that the ACCC continues to focus on its enduring priorities relating to cartel conduct, anti-competitive conduct, product safety for young children and conduct impacting First Nations consumers.
An active enforcement program
Ms Cass-Gottlieb highlighted the ACCC’s recent victories in court against large businesses across various sectors, which led to total penalties of more than $200 million in the last year.
The ACCC’s actions against false or misleading claims stand out, with significant penalties being imposed in several proceedings. Notably, Google was fined $60 million for misleading representations, and Telstra, Optus and TPG were fined a total of $33.5 million for false or misleading representations.
The ACCC’s enduring priority to address cartel conduct has also recently resulted in individuals being sentenced for criminal cartel offences in Australia for the first time. Prison sentences (suspended) were handed down in two separate proceedings in 2022.
The Chair was also confident that the ACCC would secure more enforcement successes in the next year:
“There are number of matters still under investigation in essential services sectors, so I am hopeful – I promise – that when I return next year I will have more successful outcomes to report.”
Essential services: Energy and telecommunications
As in previous years, the ACCC considers the pricing and selling of essential services a high priority for 2023-24, especially in the energy and telecommunications sectors.
Ms Cass-Gottlieb noted that cost of living pressures, including the high energy prices resulting from disruption to global gas markets, mean that consumers are particularly vulnerable to reduced competition in the supply of essential services. She also indicated that the ACCC is particularly conscious of misleading representations relating to essential services.
In relation to the Federal Government’s wholesale gas price cap, Ms Cass-Gottlieb reported that the ACCC continues to monitor compliance with the cap and is working with Government to develop a mandatory code of conduct for gas producers.
Focus on financial services
Competition in the financial services sector remains a priority for the ACCC in 2023-24, given the cost of living pressures and rising interest rates currently faced by Australians.
An important part of the ACCC’s work in this area is its inquiry into retail deposit markets. This inquiry will consider how banks set interest rates for deposit products, how consumers search and switch between products, and impediments to consumer choice.
Ms Cass-Gottlieb also confirmed that the ACCC is particularly focused on payments services, including through contributing to the Government’s strategic plan for the payments system.
The ACCC’s case against Mastercard alleging a s 46 breach for misuse of market power in relation to the RBA’s least cost routing initiative was another example of the ACCC’s work in the financial services sector.
Greenwashing claims in Australia
Ms Cass-Gottlieb confirmed that the ACCC remains concerned with misleading claims by businesses about their environmental or sustainability credentials. In 2023-24, it has broadened this priority to include competition and product safety as the economy continues to grow greener.
Ms Cass-Gottlieb stated that the ACCC's recent internet sweep for potential "greenwashing" claims has raised concerns regarding the reliability of claims about environmental credentials, and certifications for products and business operations.
She further noted that some collaboration to support new green technology may be necessary and require competition exemption.
The ACCC's efforts to address these issues in 2023-24 include updating education for industry, investigations for misleading claims, and the establishment of a new internal taskforce to build the regulator's expertise and coordinate its work in this area.
Competition and consumer law concerns across the digital economy
The digital economy remains a key priority sector for the ACCC. Ms Cass-Gottlieb emphasised that the ACCC will continue to focus on consumer and fair trading issues relating to manipulative or deceptive advertising and marketing practices online, including dark patterns, review and search result manipulation, and misleading testimonials and endorsements by social media influencers.
Ms Cass-Gottlieb also noted that there has been a significant increase in scams, both online and offline. The ACCC is seeking to address this through spam prevention, education, and support for the establishment of the National Anti-Scams Centre.
Additionally, she affirmed the concerns regarding digital platforms raised by the ACCC in its ongoing Digital Platform Services Inquiry:
“[T]he largest digital platforms have the ability and incentive to engage in conduct that entrenches and extends their market power, undermining competition on the merits with outcomes harming both consumers and business users.”
Ms Cass-Gottlieb noted that harmful conduct by digital platforms includes self-preferencing, tying and exclusive device pre-installation agreements, and impediments to switching.
Reforms targeting digital platforms
Ms Cass-Gottlieb emphasised the need for reforms to address many of the ACCC’s concerns with practices across the digital economy, especially those related to conduct by large digital platforms.
She reiterated the ACCC’s recommendations in its November 2022 Digital Platform Services Inquiry report to introduce reforms including:
- Mandatory service-specific codes of conduct for certain designated digital platforms to address anti-competitive conduct
- Consumer measures to target scams, fraudulent apps and fake reviews
- An economy-wide prohibition against unfair trading practices
Government is currently considering the ACCC’s recommendations. For more information on these recommendations and the ACCC’s findings in the Digital Platform Services Inquiry, see G+T’s summary of its latest report here.
Calling for reform: Consumer laws and merger control for non-compliance
In addition to the proposed changes to address conduct by digital economy players, Ms Cass-Gottlieb highlighted that the ACCC is seeking reforms to make non-compliance with consumer guarantee obligations illegal. This is part of the ACCC’s work on improving industry compliance with consumer guarantees, especially in relation to selling high value goods such as motor vehicles and caravans.
Ms Cass-Gottlieb also welcomed the commencement of the laws prohibiting unfair contract terms (UCTs) later this year. She indicated that the ACCC is currently reviewing business terms and conditions across various sectors to use as the basis for future enforcement cases under the new provisions.
After declaring last year that the ACCC’s merger clearance process was not “fit for purpose,” in response to a question, Ms Cass-Gottlieb also confirmed that the ACCC is continuing to consider merger reforms, including the introduction of a new mandatory and suspensory notification regime, and that the ACCC will shortly present its views to Government, although details of these views, including any proposed thresholds, were not revealed.
ACCC to maintain an active approach
Ms Cass-Gottlieb’s address confirms that the ACCC will continue to maintain a very active approach to compliance and enforcement, while advocating for reforms to bolster the existing laws protecting competition and consumers in Australia.
Ms Cass-Gottlieb’s address to CEDA is available on the ACCC website: ACCC 2023-24 Compliance and Enforcement Priorities and the ACCC’s Compliance and Enforcement Policy summary is available at: 2023-24 ACCC Compliance and Enforcement Priorities.