In a speech delivered yesterday, Rod Sims, the Chairman of the Australian Competition and Consumer Commission (ACCC) announced the ACCC's Compliance and Enforcement Policy and Priorities for 2020. The speech provides valuable insights into the ACCC's enforcement priorities, including the types of conduct and industries on which the ACCC will focus their resources in the year ahead.
Top five key priorities for the ACCC
1. Competition enforcement
Consistent with previous years, as an enduring priority the ACCC will continue to prioritise investigations and enforcement action in relation to cartel and other anti-competitive conduct. In his speech, Mr Sims stated that currently there are five criminal cartel cases before the courts, and the ACCC expects at least two new cartel cases to be put before the courts in 2020. Further, there are plans to institute at least four new competition cases.
Mr Sims also noted that the revised cartel immunity and cooperation policy launched in October 2019 is 'proving to be quite useful', and that the ACCC has a number of active investigations that have been reported to the ACCC anonymously by whistleblowers.
Some industries will be under the spotlight:
- Commercial construction: the ACCC continues to focus on the commercial construction sector in 2020, with its dedicated Commercial Construction Unit looking at conduct affecting competition and poor trading practices. Mr Sims notes that there are investigations underway into secondary boycotts, activity aimed at damaging individual small businesses and unfair contract terms.
- The funeral industry: Mr Sims noted that this is a concentrated sector with some players having significant market power. The ACCC is aware of reports from within the sector of anti-competitive conduct such as misuse of market power and exclusive dealing, and is strongly encouraging whistleblowers to come forward.
2. Consumer law enforcement
Many of the ACCC's enforcement priorities for 2020 have a consumer law enforcement focus, including in particular:
- Digital issues: the ACCC continues to have concerns about consumers being misled over the collection and the use of their personal data. Mr Sims stated that the ACCC is advancing many investigations, and there is already one matter before the court.
- Pricing and selling practices of essential services: the new energy market misconduct laws will be used to target anti-competitive conduct and failures to pass through cost reductions. The ACCC will start monitoring this conduct in 2020, with a particular focus on anticipated falls in wholesale electricity prices. In the speech Mr Sims also expressed concerns regarding misleading and deceptive selling practices of goods and services in the telco sector.
- Small business: the ACCC will continue its focus on the small business sector for many years, including enforcement of the Franchising Code of Conduct. Mr Sims highlighted that the ACCC has a number of important cases it wants to bring before the courts which will highlight some of the significant problems in the sector.
- Consumer guarantees: consumer guarantees remain the number one issue for the ACCC. Mr Sims noted that the ACCC has matters before the courts involving motor vehicles manufacturers, and alluded to further enforcement and compliance initiatives.
- Misleading claims in food marketing: the ACCC will focus on products that make misleading claims about the health or nutritional content of foods, either on the product itself and/or in its associated marketing, and have capacity to cause substantial consumer detriment.
In addition, the ACCC has welcomed the introduction of the Dairy Industry Code of Conduct came into effect on 1 January 2020. While the ACCC will work closely with the affected dairy farmers and associated processors to ensure a smooth implementation, it will also enforce the Code if significant non-compliance issues arise.
3. Product safety
The ACCC is continuing its focus on product safety, with particular emphasis on finalising the Takata airbag recall.
4. Market studies
The ACCC will be focussing on a number of market studies, including continuing the Northern Australian Insurance and the Murray Darling Basin Water Markets inquiries, which may raise enforcement issues.
5. Advocacy
The ACCC is continuing its focus on advocacy, with a focus on the following areas:
- There are advanced Government processes underway considering laws covering unfair contract terms and a national safety provision, to which the ACCC is contributing. Mr Sims emphasised that the debate has just started on Australia following the US, the UK, Europe and others, and introducing a law against unfair practices by large businesses against consumers and small businesses, where significant detriment is involved.
- The ACCC, as Australia's general infrastructure regulator, is also pointing out that there is no regulatory regime for infrastructure monopolies that are not vertically integrated. While there is Part IIIA of the Competition and Consumer Act 2010 (Cth) for vertically integrated infrastructure, there is no equivalent where the monopoly owners are not vertically integrated.
- The debate that Australia 'needs to have' about how concentrated Australia wants its economy to be, and consequently how the assessment of the competition effects of mergers should be approached. Mr Sims stated he will say more about this later in the week.
How can we assist your business in response to the ACCC's priorities?
- Design and deliver up to date competition and consumer law compliance training;
- Review existing and anticipated arrangements to identify any risk stemming from the competition and consumer provisions under the spotlight;
- Assist with responses to regulatory investigations and information requests.
