In his 2021 enforcement priorities address, Rod Sims has reiterated the importance of refocusing the ACCC's priorities in response to emerging issues following disruption from the global COVID-19 pandemic, while calling for merger law reform.

ACCC engagement strategies

The ACCC highlighted its openness to pursuing non-litigious outcomes (direct conciliatory engagement with businesses following consumer complaints and the use of enforcement investigations) but cited a growing list of pending civil and criminal cartel cases that are due to commence this year including the CFMMEU prosecution, the Country Care matter and the ANZ, Deutsche Bank and Citibank case. The ACCC expects to issue proceedings in respect of two to three additional civil or criminal cartel cases this year.

2021 focus sectors

In outlining its 2021 industry focus sectors, the ACCC cited the travel, aviation and caravan sectors as industries which had been impacted by the pandemic and which would be actively monitored. The ACCC has also noted it continues to have significant concerns about the funeral industry and will conduct deeper examination of the use of the significant market power of some industry participants to bundle services, block new entry or engage in unconscionable conduct.

The ACCC will also continue to monitor the pricing and selling of essential services (electricity and telecommunications), commercial construction, finance (home loans), franchising and the agriculture sector.

Merger control law reform

The ACCC announced it is currently exploring merger law reform options after reiterating its concerns that the merger control regime is not fit for purpose. The ACCC cited the difficulties it faces in 'proving' forward looking counterfactual scenarios in court, which it considers are open to manipulation by the merger parties and said that the likely anticompetitive effects of the merger are often overlooked in this context (but did not provide any particular examples of this taking place).

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.