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ACCC will face ‘diverse range of policy, regulatory and enforcement challenges’ in 2022
Big tech reforms and a “significant” increase on the emphasis of business compliance are predicted to lead the charge in 2022, according to new research from national law firm Maddocks.
Lauren Croft
The annual Australian Competition and Consumer Commission (ACCC) Year in Review publication delves into the ACCC’s leading cases and other policy and regulatory activities throughout the year and evaluates how well the ACCC performed against its 2021 enforcement and other ongoing priorities.
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Maddocks dispute resolution and litigation partner and editor of ACCC Year in Review Shaun Temby said the report examined the ACCC’s now-withdrawn cartel prosecution of ANZ Bank, Citigroup Global Markets Australia, and Deutsche Bank AG.
“Despite having over 10 years since the criminal cartel laws were first introduced, the ACCC’s internal evidence gathering processes were inadequate for the task,” he said.
“Serious questions should also be asked about whether the committal hearing process works effectively or is simply an unnecessary and wasteful duplication of resources.”
Written by a cross-sector team at Maddocks, the report predicts that in 2022, there will be “a continued focus on suspected cartel behaviour, with a likely pause on new criminal prosecutions and an increased focus on civil penalty proceedings” as well as a “significant emphasis on business compliance with likely new unfair contract terms laws and the introduction of penalties for their use”.
Additionally, over the next year, ongoing policy discussions and proposals for possible reform following the digital platforms inquiry could mean better regulatory alignment with international laws and more regulation in the big tech space. According to the report, further enforcement activity against energy retailers is set to “increase pricing transparency and ensure that savings in wholesale electricity costs are passed on to consumers”.
Released a month before the departure of Rod Sims as chair of the ACCC, the report found that the past 12 months have seen the consumer watchdog “score significant victories”, both in the areas of digital platforms and raising penalties for consumer law breaches.
However, the report also found a lack of visible progress in the area of reform of merger clearance laws and a lack of prosecutions brought by the ACCC for misuse of market power, despite the changes to lower the standard for this conduct a few years ago.
Mr Sims steps down on 20 March – and will be replaced by lawyer Gina Cass-Gottlieb.
Mr Temby added that the ACCC has had many successes during Mr Sims’ time as chair.
“The most significant of these victories has been increasing penalties imposed for consumer law breaches, improvements to the unfair contract law regime though they remain a work in progress, and some world-first regulatory and enforcement success against big tech,” he added.
“The ACCC was also one of the few Australian regulators to emerge largely unscathed from the royal commission into banking services due to its robust approach to enforcement, which is no mean feat.”
Moreover, Mr Temby welcomed the appointment of Gina Cass-Gottlieb as incoming ACCC chair and said her experience would be valuable over the next year.
“Ms Cass-Gottlieb brings with her experience in public service, having been appointed to the Reserve Bank of Australia’s payments system board in 2013, re-appointed in 2018 and appointed recently to the Financial Regulator Assessment Authority,” he said.
“Ms Cass-Gottlieb’s experience in dealing with complex competition law issues will be crucial as the ACCC confronts a range of diverse range of policy, regulatory and enforcement challenges over the next 12 months.”
