ACCC 2022 In Review | Looking forward
As always, we set below our views on what we can expect from the ACCC this coming year.
Several initiatives implemented by the ACCC last year to increase the reporting of and detection of cartels should start to bear fruit in 2023. The combination of these initiatives with the reported uptick in applications for immunity at the tail end of last year would suggest an increase in cartel prosecutions in the months ahead. However, we predict that there will be more civil prosecutions than criminal prosecutions as the ACCC adopts a more careful approach to its investigation and prosecution (with the CDPP) of criminal cartel matters. One observation we can confidently make is that a number of the current cartel matters before the Courts will be wrapped up early this year, with judgment imminent in Delta, a penalty hearing in Bluescope and a sentencing hearing in Bingo.
Other conduct affecting competition
We foresee a business-as-usual approach for the ACCC, other than in the area of concerted practices, in which new proceedings will continue apace. We predict more action by the ACCC to deter companies seeking to influence competition in a manner that falls short of the requirements of a contract, arrangement or understanding.
We are eagerly awaiting Ms Cass-Gottlieb’s view on several big mergers between businesses seeking to extend their share in industries that are oligopolies, such as ANZ’s acquisition of Suncorp’s banking operations and Brookfield’s acquisition of Origin. Given previous transactions that were not opposed by the ACCC in the banking sector, it may be difficult for it to take a stance in the sector now. Even if it does reject these transactions, Telstra and TPG’s appeal to the Australian Competition Tribunal may encourage ANZ to challenge the decision – so the outcome of that case takes on greater significance. Finally, we predict that the ACCC will dust off various merger law reform proposals and refresh some of the plan’s details under its new leadership.
Greenwashing will be a key focus this year given the internet sweep carried out by the ACCC late last year. Once again, unless the ACCC finds something particularly egregious, we predict that this won’t lead to much in the way of litigation and instead expect the ACCC to release a flurry of infringement notices to address poor conduct in this space. We think the ACCC has at least another year focussing on consumer guarantees to try and drive home to business the obligations they have to consumers under the regime.
Unfair contract terms
Given the changes to the unfair contract terms regime ACCC will commence proceedings or issue infringement notices in the first half of the year to publicise the changes. However, these will taper off towards the end of the year as the ACCC looks for one or two high-profile scalps to prosecute companies under the new regime. We also forecast a strong education campaign to be implemented along with these changes.
The ACCC’s approach to the Facebook crypto-currency case will be quite telling. In our view, they have an obligation to take this through to trial to test the law concerning the liability of digital platforms for online scams. Following on from the fifth interim report for the Digital Platform Services inquiry, we expect the ACCC will strongly press for law reform in this space and for greater powers for the ACCC and responsibility for digital platforms. Given the increasing number and sophistication of scams in the Australian marketplace, mere education campaigns by the ACCC are really no longer sufficient.
In 2023, the ACCC will continue monitoring competition and consumer issues in Australia’s energy markets. The possibility of a gas shortfall on the east coast and the ongoing challenges of our transition to a zero-carbon economy make the possibility of further government intervention in this market highly likely. We expect the ACCC to play an important role in any such intervention.
We don’t foresee the healthcare sector returning to the ACCC’s annual compliance and enforcement priorities, however, given that healthcare is complex and expensive, and the risk of misleading, unfair and unconscionable conduct in the healthcare sector remains high, we expect to see ongoing ACCC enforcement activity in the sector.
Given the ACCC’s focus on the construction sector and on contracts for large public works, we predict several civil prosecutions for cartel conduct in these sectors this year. The ACCC’s case against ARM Architecture may also make it to trial this year – assuming that a settlement is able to be reached beforehand. Finally, we expect the Federal Court to had down its decision against Delta before July 2023.
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