The Australian Competition and Consumer Commission has announced its 2018 compliance and enforcement priorities. Each year the ACCC provides an outline of its strategy for the year ahead which includes an indication of the areas that the ACCC will be focussing on in its efforts to ensure compliance with, and enforcement of, the Australian Competition and Consumer Act 2010 (Cth) (including the Australian Consumer Law).
In his annual CEDA address announcing the forthcoming year’s strategy (the full text of which can be found here), Rod Sims, Chairman of the ACCC, has welcomed the introduction of two new pieces of legislation in 2017 which amend the Competition and Consumer Act in light of the Australian Competition Policy Review (the Harper Review) to address issues in relation to cartel conduct, price signalling and concerted practices, exclusionary provisions, third line forcing, resale price maintenance, merger and non-merger authorisations, notifications and access. We discussed the draft legislation here.
Mr Sims also welcomed the proposed changes to the maximum penalty for contraventions of the Australian Consumer Law by companies and individuals, which have been introduced into parliament in the form of the Treasury Laws Amendment (2018 Measures No. 3) Bill 2018. This was in response to the final report handed down in 2017 by Consumer Affairs Australia and New Zealand as a result of its broad-reaching review of the Australian Consumer Law.
In light of these events, and other matters which have been brought to the ACCC’s attention or which the ACCC has been tasked to review, the ACCC will be focussing its enforcement priorities for 2018 in the following areas in addition to what the ACCC regards as "enduring" priorities including cartel conduct and competition issues:
- competition and consumer issues in relation to new car retailing, broadband, the provision of energy and the agricultural, financial services and commercial construction sectors;
- systemic issues relating to large or national traders avoiding or misrepresenting consumer guarantee rights;
- competition and consumer issues concerning the use of digital platforms, algorithms and consumer data;
- ensuring small business receives the protections of industry codes and the unfair contract terms provisions in the ACL, with a focus on Franchising Code of Conduct issues involving large or national franchisors;
- product safety in the online marketplace and dealing with issues arising from the Takata airbags recall; and
- misuse of market power and concerted practices.
We would also not be at all surprised if the ACCC took an opportunity to try out the revised misuse of market power provision which now contains an "effects" test. A company which has a substantial degree of power in a market will breach the provision if it engages in conduct that has the purpose, or has or is likely to have the effect, of substantially lessening competition in a market.
The full text of the 2018 ACCC Compliance and Enforcement Policy and Priorities can be accessed here.