ACCC announces 2023/2024 compliance and enforcement priorities

Enforcement priorities include new areas of focus and others which have been carried forward from prior years, such as competition issues in global and domestic supply chains, financial services, sustainability and digital platforms.

The ACCC's 2023/24 priorities were announced by ACCC Chair, Gina Cass-Gottlieb, on 7 March 2023:

  • Competition and consumer issues in global and domestic supply chains, particularly transport and logistics;
  • Consumer, product safety, fair trading issues and competition concerns relating to environmental claims and sustainability;
  • Exclusive arrangements by firms with market power that impact competition;
  • Competition in the financial services sector, with a focus on payment services;
  • Competition and consumer issues relating to digital platforms;
  • Competition and pricing issues in gas markets, including compliance with the price cap order;
  • Consumer and fair trading issues relating to manipulative or deceptive advertising and marketing practices in the digital economy;
  • Consumer and fair trading issues arising from the pricing and selling of essential services, with a focus on energy and telecommunications;
  • Unfair contract terms in consumer and small business contracts;
  • Empowering consumers and improving industry compliance with consumer guarantees, with particular focus on high value goods including motor vehicles and caravans;
  • Ensuring small businesses, particularly those in agriculture and franchising, receive the protections of competition and consumer laws; and
  • Consumer product safety issues for young children, focussing on compliance, enforcement and education initiatives.

The ACCC also restated its 'enduring priorities', which include prioritising cartel conduct and anti-competitive agreements and practices, and misuse of market power.

The ACCC's media release regarding its compliance and enforcement priorities for 2023/24 is accessible here.

A summary of the 2023/24 priorities published by the ACCC is accessible here.

ACCC continues to push for reforms to Australia's merger clearance regime

The ACCC wants Australia to have a mandatory and suspensory merger control regime.

On 12 April 2023, ACCC Chair Gina Cass-Gottlieb spoke to the National Press Club, commenting on increasing pressure on the ACCC's existing informal merger regime and reiterating the ACCC's earlier calls for reform.

Ms Cass-Gottlieb highlighted the growing number of applications with late, incomplete, or incorrect information affecting the ACCC's ability to effectively assess mergers. The ACCC also believes the existing regime has made it difficult for the ACCC to oppose mergers, with the public bearing the risk of anti-competitive mergers as opposed to the merger parties.

To address these issues, the ACCC has proposed:

  • shifting the regime from a voluntary to a mandatory and suspensory one, requiring parties to notify the ACCC of mergers where certain thresholds are met, and to suspend completion until approval is obtained;
  • giving the ACCC the power to "call in" mergers for review if they do not meet the notification thresholds;
  • introducing an expedited process for non-contentious mergers;
  • incorporating a public benefits test (if parties cannot satisfy the ACCC that there are no competition issues);
  • changing the substantial lessening of competition test so that it will capture mergers that have the likely effect of entrenching, materially increasing or materially extending a position of substantial market power;
  • introducing additional "merger factors" including: loss of actual or potential competitive rivalry; increased access to, or control of data, technology or other significant assets; and whether the acquisition is part of a series of acquisitions; and
  • empowering the Australian Competition Tribunal to hear appeals of ACCC merger clearance decisions.

These proposed reforms would need to be passed by Parliament before being enacted. There is no indication yet regarding the Australian Government's response to the ACCC's proposals.

The ACCC's media release concerning the reform of merger laws is accessible here.

ACCC takes action against alleged cartel supplying mining camps

On 17 February 2023, the ACCC commenced proceedings against Swift Networks Pty Ltd (Swift) for alleged bid rigging and price fixing when tendering to supply equipment and services to regional Australian mining village sites. It is alleged that on five occasions Swift agreed with a competitor that one of them would submit a higher price than the other in response to a tender for the supply of technology infrastructure at mining camps in WA's Pilbara region. The services were related to the provision of IT, communications, audio-visual entertainment infrastructure and associated services for providing internet and media services. Both parties engaged each other as subcontractors from time to time, however the ACCC has alleged that the companies acted beyond the scope of any sub-contracting relationship.

As noted by ACCC Commissioner Liza Carver, the case is a reminder that any time businesses are dealing with competitors, they must exercise caution to ensure that their discussions do not lead to anti-competitive arrangements, including cartel conduct.

ACCC media release is here.

Continued focus on digital platforms as an enforcement priority

The ACCC has announced, as part of the Digital Platform Services Inquiry, that it will consider expanding ecosystems and interconnected services.

On 8 March 2022, the ACCC released a media release and issues paper seeking public submissions on investment decisions made by digital platforms, the interconnectedness of expanded products and services, and the potential impact of these services on competition and consumers. The issues paper is intended to inform the ACCC's upcoming report to the Treasurer, due on 30 September 2023, as part of the five-year inquiry into markets for the supply of digital platform services.

The ACCC has expressed particular interest in expansion strategies used by digital platform providers and how they may affect consumer lock-in behaviours or other anti-competitive conduct such as bundling, tying or self-preferencing to inhibit competition. The ACCC has indicated this may arise from interconnected products such as smart home devices, cloud storage solutions, artificial intelligence, virtual and augmented reality, virtual assistants, education, health and fitness, media streaming, gaming, and financial technology. The ACCC has said that other potential issues in connection with personal data, such as excessive collection, will also be considered.

The ACCC's media release concerning digital platforms ecosystems is accessible here.

The ACCC's issues paper on digital platforms ecosystems is accessible here.