ACCC Outlines Enforcement and Compliance Priorities for 2021

On 23 February 2021 the Chairman of the Australian Competition and Consumer Commission (“ACCC”), Rod Sims, outlined the ACCC’s Compliance and Enforcement Priorities for 2021 at the annual Committee for Economic Development Australia Committee Conference (“CEDA”).

In an accompanying ACCC Media Release, Mr Sims said:

The consumer watchdog will also “be closely monitoring the plans by the regional operator Rex to enter the major domestic routes, including those connecting Sydney, Melbourne and Brisbane, with a particular focus on Rex’s ability to access slots at Sydney Airport”.

Determining a Priority Investigation

When deciding whether to pursue a matter, the ACCC prioritises matters which fall “within current priority areas and will give particular consideration to those matters which also have the following factors”. These may include:

• conduct that is of significant public interest or concern;
• conduct that results in substantial consumer or small business detriment;
• national conduct by large traders, recognising 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 our action is likely to have an educative or deterrent effect; and
• where action by the ACCC will assist to clarify aspects of the law, especially newer provisions of the Competition and Consumer Act 2020 (Cth).

Brief Overview of the ACCC’s Priorities

Some of the topics covered in the Chairman’s CEDA address were:

• competition issues in the context of the COVID-19 pandemic, including in the domestic air travel market;
• significant growth in the caravan industry due to international travel restrictions saw the ACCC continue to receive complaints and concerns about caravan manufacturers failing to comply with consumer guarantee obligations;
• competition and consumer issues relating to digital platforms;
• promoting competition and investigating allegations of anti-competitive conduct in the financial services sector; and
• competition and consumer issues arising from the pricing and selling of essential services, with a focus on energy and telecommunications.

The priorities also include two crucial product safety measures; implementation of new safety standards for button batteries to prevent injury and death to children, and monitoring of the government’s new mandatory standards for quad bikes, also designed to save lives.

On-going Priorities for the ACCC

According to the Media Release, the ACCC considers some forms of conduct “so detrimental to consumer welfare and the competitive process that the ACCC will always regard them as a priority”. These include:

• Cartel conduct - the ACCC will always prioritise cartel conduct causing detriment in Australia. When dealing with international cartels, the ACCC will focus on pursuing cartels that have a connection to, or cause detriment in Australia; that is, cartels that involve Australians, Australian businesses or entities carrying on business in Australia;
• Anti-competitive conduct - the ACCC will always prioritise anti-competitive agreements and practices, and the misuse of market power;
• Product safety - the ACCC will always prioritise product safety issues which have the potential to cause serious harm to consumers; and
• Consumers experiencing vulnerability or disadvantage - the ACCC recognises that consumers experiencing vulnerability and disadvantage can be disproportionately impacted by conduct in breach of the Act.

Future Market Studies and Advocacy

As outlined in the CEDA speech, the ACCC has undertaken many inquiries at the request of Government. Some major inquiries have been:

• the cost of insurance in northern Australia;
• home loan interest rates; and
• perishable agricultural goods.

The ACCC will soon conclude their inquiry into the water market in the Murray Darling basin as well as continuing studies relating to the electricity and gas sectors and will continue to advocate for reforms to address key issues impacting consumers and small businesses.

Compliance and enforcement action in relation to the Consumer Guarantee Regime and the Unfair Contract Terms provisions have identified important deficiencies in the law that need to be addressed.

As stated in their priorities, the ACCC considers that Australia’s consumer law framework “needs an unfair trading practice prohibition. This is an issue that Australian governments and agencies are already discussing following the review of the Australian Consumer Law [ACL] in 2018 and it was a key recommendation that we have made following our Digital Platform and Perishable Goods inquiries”.

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ACCC Media Release: ACCC's 2021 enforcement and compliance priorities (ACCC, 23 February 2021)

ACCC boss Rod Sims says extra scrutiny of the travel sector to continue in 2021 (Lois Maskiell, SmartCompany. 24 February 2021)