On Tuesday (20 February 2018) the ACCC Chairman, Mr Rod Sims, outlined the "2018 Compliance and Enforcement Priorities" of the ACCC at his annual Committee for Economic Development of Australia (CEDA) address. In his address Mr Sims indicated that in 2018, the ACCC would focus on:
In his address Mr Sims covered the following topics:
A major highlight of 2017, according to Mr Sims, was the passage of the Competition and Consumer Amendment (Competition Policy Review) Bill 2017 and the Competition and Consumer Amendment (Misuse of Market Power) Bill 2017 through Parliament, as the legislation brought the "Competition Policy Review" (namely, the Harper Review) to "a very successful conclusion". The Harper legislation featured a broad range of amendments to the Competition and Consumer Act 2010 (the CCA) with respect to cartels, price signalling and concerted practices, exclusionary provisions, third line forcing, resale price maintenance, merger and non-merger authorisations, notifications and access. Mr Sims said:
In the area of cartel prosecutions, Mr Sims reported that progress was made with the second criminal cartel prosecution in Australia for cartel conduct marking a significant step forward in the ACCC's investigations and approach to cartel prosecution. Mr Sims saw the conviction of NYK, a Japanese shipping company and the $25 million fine imposed by the Federal Court as indicating the seriousness with which Courts view cartel style collusion. Mr Sims also highlighted that a second case involving K-Line, also a Japanese shipping company, is before the Federal Court of Australia, listed for trial in Sydney later in 2018.
On the civil law side, Mr Sims mentioned the largest and longest cartel investigations the ACCC has been involved in, namely, the Air New Zealand and Garuda Indonesia air cargo case where:
On the Australian Consumer Law generally Mr Sims indicated that:
Mr Sims further indicated that penalties against individuals under the ACL are to be increased from $220,000 to $500,000 with the introduction last week of the Treasury Laws Amendment (2018 Measures No. 3) Bill 2018 to the Parliament. If passed, the Bill will align the maximum penalties under the ACL with the maximum penalties under the competition provisions of the CCA consistent with a Productivity Commission recommendation into Consumer Law Enforcement and Administration. According to Mr Sims: "This is a profound change that will change corporate behaviour significantly."
Mr Sims addressed the ACCC's role as a proactive competition advocate highlighting the importance to this role of the market studies conducted by the ACCC:
Mr Sims identified the following areas as presenting challenges for the ACCC in 2018.
In 2018 the ACCC will focus on consumer issues relating to broadband services and energy, competition in the financial services and commercial construction sectors, systemic consumer guarantee issues, and conduct that may contravene the new misuse of market power and concerted practices provisions.
In relation to energy, Mr Sims noted that Australia faces an energy affordability crisis. The ACCC’s retail electricity pricing inquiry report and the ACCC’s wholesale gas inquiry have given the ACCC and the wider community, a stronger understanding of the issues and pressures around rising energy prices.
Another area of priority is the consumer issues arising from the provision of broadband services, which includes dealing with misleading speed claims and statements made during the transition to the NBN. According to Mr Sims, this has become one of the ACCC’s most prominent issues in the past two years and highlights the importance of the ACCC's consumer and competition focus.
He believes the ACCC is well placed to play a role in consumer and competition issues relating to access to data, and says that this has been recognised by the government.
The ACCC’s Financial Services Unit is now well established and will, post 1 July 2018, proactively identify and investigate competition issues in the sector. Mr Sims highlighted 2018 will be the first full year the ACCC will have powers covering misuse of market power and concerted practices.
Mr Sims also stressed the importance of higher penalties under both consumer and competition law. In relation to the ACL:
In relation to competition penalties, the ACCC is also anticipating the launch of an OECD report at the end of March which will " . . . shine a light on Australia’s approach to antitrust sanctions in comparison with other developed competition law jurisdictions".
Most keenly anticipated, according to Mr Sims, is the ACCC’s inquiry into digital platforms:
In all Mr Sims said that he felt 2018 will be "an exciting and full year" which should see the role of the ACCC in consumer law become even more mature and important to the community in terms of protecting consumers.
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