The paper is titled ACCC compliance and enforcement priorities of 2023–24 and authored by partner Sarah Fregon and lawyer Thomas Clark. 

The regulator’s enduring priorities remain on pursuing cartel and anti-competitive conduct and product safety.

ACCC’s attention is also increasing in areas that have been impacted by current pressures to the Australian economy, consumers and businesses — namely, increasing consumer vulnerability due to rising living costs, and changes to technology and the increasing reliance on digital services and platforms and associated risks.

Ms Fregon and Mr Clark outlined the key areas to watch in the coming year:

• The introduction and enforcement of new laws that prohibit unfair contracts;
• The regulator’s growing focus on unsubstantiated claims about ESG credentials; and
• Focus on anti-competitive conduct in sectors that play a key role in the cost of living — including energy and telecommunications. 

Essential services: Energy and telecommunication

Prices of essential services are a key focus for the regulator this year. This includes combating anti-competitive conduct that reduces competition and choice, or that contributes to rising prices.

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The regulator will also combat misleading representations that undermine a customer’s ability to make informed choices.

In her speech, Ms Cass-Gottlieb noted the regulator’s crucial role in this space, referring to their actions last year in enforcing the government’s emergency price cap on the sale of wholesale case producers.

Digital platforms and scam protection

Competition and consumer issues relating to digital platforms have been on the regulator’s radar for some time.

The ACCC will target tactics and strategies used by digital platforms that distort consumer choice and result in consumers agreeing to unfair or unfavourable contract terms.

The regulator will also target increases in digital scams and anti-competitive conduct by large digital platforms.

Going forward, the ACCC will support the establishment of the government’s National Anti-Scams Centre, announced in October 2022.

Unfair contract terms

Later this year, new laws prohibiting unfair contract terms will come into effect. The ACCC has long petitioned for these changes.

Key changes to the unfair contract terms legislation will see previously unfair contract terms that could only be declared void are now prohibited, and their use may bring penalties.

The protections have been expanded to cover a broader range of small businesses.

Ms Fregon and Mr Clark suggested that businesses using standard-form contracts should review their contracts for unfair contract terms to ensure compliance with the new laws. 

Greenwashing — environmental claims and sustainability

The ACCC is increasingly concerned about and focused on the use of broad, unsubstantiated claims by businesses to promote products as being environmentally friendly.

A recent report by the ACCC (ACCC ’greenwashing’ internet sweep unearths widespread concerning claims) revealed that 57 per cent of businesses it reviewed made “concerning” claims about ESG credentials.

The regulator is establishing a new internal taskforce that will focus on sustainability. 

Financial services sector

The ACCC confirmed it is a priority to ensure that the financial services sector remains competitive and that anti-competitive conduct within the industry is addressed.

The regulator has commenced an inquiry into retail deposit markets, which will examine how interest rates are set for credit products, the role of deposits in a bank’s funding, which factors affect consumer decisions in these markets, and the impediments that prevent consumers from changing between products.

Manipulative or deceptive advertising in the digital economy

The ACCC’s focus will remain on manipulative and deceptive practices in connection with digital services.

Attention in this area has turned to posts made by influencers on digital platforms, including TikTok, Snapchat, YouTube, Facebook, and Twitch, where relationships or affiliations between the influencer and featured products have not been disclosed.

Consumer guarantees and small business protections

Continuing from previous years, the ACCC’s focus remains on assisting and empowering consumers to enforce their rights, particularly where a product or service is faulty and in relation to high-value goods.

Ms Cass-Gottlieb noted that changes should be made to render a breach of a consumer guarantee illegal and prohibited under the Australian Consumer Law.

Cartel conduct, product safety and conduct impacting First Nations Australians

The ACCC has committed to continuing to address product safety issues for young children. 

Cartel conduct will remain a priority, following a number of successful persecutions in the past 12 months.

The ACCC will also expand its work in relation to First Nations Australians, expanding this program to metropolitan areas with a focus on misleading and deceptive conduct and scams.

Ensuring compliance

“It is clear the ACCC intends to continue to be active in its approach to compliance and enforcement in addition to seeking further reform to expand competition and consumer protection laws in key areas,” Ms Fregon and Mr Clarke noted. 

With the maximum penalties for corporations increasing to the greater amount — either $50 million or 30 per cent of annual turnover — the consequences of failing to ensure compliance have never been greater, Ms Fregon and Mr Clarke stated.

Impacts are both on finances, as well as business interruption and reputational damage, the pair noted.