In 2024, while the Australian legal community “celebrates” the 50^th anniversary of the introduction of the Trade Practice Act, the Australian Competition and Consumer Commission (ACCC) has never had a broader remit of responsibility. This year, we will see the ACCC focused on a broad range of industries focused on sustainability, easing cost-of-living pressures, and competition and consumer protection issues, especially in essential services.

With Australian consumers currently experiencing price increases across a range of essential goods and services, the ACCC’s announcement that this year it will focus on easing cost-of-living pressure will come as no surprise, and hopefully with some relief. In her second speech at the ACCC’s annual enforcement and compliance policy update hosted by the Centre for Economic Development for Australia (CEDA), ACCC Chair Ms Gina Cass-Gottlieb announced that housing, food and groceries, energy prices and financial services will be under the ACCC’s microscope this year, as the competition regulator seeks to use its competition and consumer law powers to deliver real and immediate benefits for Australian consumers.

"Faster, louder, stronger"

Interestingly, when answering questions following her speech, Ms Cass-Gottlieb made several off-the-cuff comments concerning the ACCC’s approach to enforcement. She confirmed our long-held suspicion that the ACCC is now more focused on achieving timely redress for consumers and the quicker resolution of matters over Court-ordered outcomes. In doing so, Ms Cass-Gottlieb highlighted several matters resolved recently by the ACCC where Court proceedings had been avoided by businesses willing to establish regimes to compensate consumers voluntarily. She was open about the ACCC’s broader use of the regulatory tools available to it to achieve this result. This change in approach is consistent with our article last year, where we observed that the number of new consumer proceedings by the ACCC was approximately half its long-term annual average.

Sustainability: an ACCC-wide focus

Over the past two years, the ACCC has identified sustainability-related issues as an enforcement priority, primarily focusing on greenwashing and other environmental claims. In 2024, the ACCC will broaden its focus on sustainability issues, taking a comprehensive approach in recognition of the cross-economic impact of Australia’s commitment to transition to net zero. In particular, the ACCC will focus on sustainability issues in consumer protection, competition enforcement and exemptions, product safety (particularly concerning renewable energy products and batteries) and market inquiries such as those in electricity and gas markets and the Northern Australian cyclone reinsurance pool.

In announcing this expanded focus, Ms Cass-Gottlieb highlighted that the ACCC believes that Australian consumers have a desire to reduce the negative impacts of their consumption choices on the environment and, in doing so, purchase goods and services that are marketed using claims about environmental impact. Notably, Ms Cass-Gottlieb stated that the ACCC has been focused on providing guidance to businesses and building compliance with current laws over the past two years – not the commencement of new Court proceedings. Currently, the ACCC has several in-depth greenwashing investigations underway, including in the energy and consumer products sectors. However, given the ACCC’s stated goal of achieving quicker resolutions and consumer redress, time will tell whether these matters make it to Court.

Supermarkets and easing the cost of living

Unsurprisingly, Ms Cass-Gottlieb confirmed that the ACCC would be focused on easing the cost of living pressures on Australian consumers, who are experiencing price increases across a range of products and services, including the cost of essential goods and services such as housing, food and groceries, energy prices and financial services. In particular, the ACCC will be focused on:

• anti-competitive conduct that reduces competition in the supply of essential goods and services, restricting entry or expansion of competitors, reducing choice, and contributing to price escalation pressures; and

• misleading sales representations regarding the price, features or benefits of essential goods and services preventing consumers from making informed purchasing decisions.

In response to the concerns of many Australian consumers and farmers about supermarket pricing and price gouging, the ACCC will prioritise competition, consumer protection and pricing issues in the supermarket sector. This will be done primarily achieved through the:

• 12-month supermarkets price inquiry into competition in the supermarket and grocery sector, which has now commenced, and

• ACCC closely considering reports from consumers alleging false or misleading “was/now” or other pricing “specials” advertised by the supermarkets to identify whether they raise concerns under the Australian Consumer Law.

Essential services

This year, the ACCC will again focus on misleading conduct in the energy and telecommunications sectors, particularly pricing and product claims, to ensure that consumers can make informed decisions about their choices as they cope with cost-of-living concerns. Ms Cass-Gottlieb called out mobile phone coverage, data speeds, off-peak tariffs, and environmental benefits as possible focus areas.

In addition:

• following the ACCC’s recent market inquiries, it will be focused on ensuring there is vigorous competition in the telecommunications, electricity, gas and financial services sectors; and
• the ACCC has been actively monitoring electricity retailer advertising and price increases.

Aviation

Unsurprisingly, given its recent high-profile activity, the ACCC will prioritise competition and consumer issues in the aviation industry. The ACCC is particularly concerned that cancellation and delay statistics remain above long-term averages and that it continues to receive a high number of consumer complaints concerning airline services. On the competition front, Ms Cass-Gottlieb said that Australia stands at a critical point in relation to the opportunity for increased competition and that the ACCC intends to look closer at, and follow through on, allegations of anti-competitive behaviour and unfair business practices in the aviation sector.

Unfair contract terms

As we predicted in our ACCC 2023 Year In Review with the unfair contract terms regime having undergone a dramatic change in November 2023 (including the introduction of a prohibition of and penalties for unfair contract terms), it is no surprise that this will be a focus for the ACCC this year. While Ms Cass-Gottlieb noted that many businesses had been proactive in making changes to their standard form agreements before the changes came into effect, the ACCC has several matters currently under investigation involving businesses using standard form agreements that contain unfair contract terms. Pointedly, however, Ms Cass-Gottlieb did not commit to a significant number of high-profile prosecutions in this space, which (once again) represents a change in the ACCC’s historical approach.

What else for the year?

In addition, 2024 will see the ACCC focus on:

• consumer guarantees – Ms Cass-Gottlieb said this is the most complained about issue raised with the ACCC and that it has several active investigations and other matters before the courts dealing with this issue;

• product safety – the safety of young children will be a key focus in 2024, particularly concerning the safety of nursery products, including furniture, infant self-feeding products and infant sleep products; and

• digital economy – following the ACCC’s recent ‘digital sweep’, it will focus on misleading or deceptive advertising in influencer marketing, online reviews, in-app purchases, delivery times and price comparison websites.

Enduring priorities

Of course, the ACCC’s enduring priorities will remain a focus. As usual, cartel conduct and other anti-competitive conduct will stay front and centre, with Ms Cass-Gottlieb teasing that the ACCC expects to make further announcements about this program of work throughout the year. In addition, the ACCC will remain focused on conduct impacting:

• vulnerable or disadvantaged consumers;
• indigenous Australians; and
• small businesses.

Closing thoughts

2024 looks to be the year of ongoing monitoring and engagement by the ACCC across a broad range of sectors focused on delivering consumer benefits. We maintain the view that the ACCC will fulfill its role, and seek to achieve this aim, by adopting a more practical and solution-focused approach. We also do not anticipate the return to prosecution levels seen under the previous Chair, Mr Rod Sims. For businesses, it means that for many types of unlawful conduct, the best approach when the ACCC comes knocking might be a proactive one. This means engaging with the ACCC in the early stages of an investigation concerning possible misconduct and offering to compensate impacted consumers in order to avoid costly and high-profile litigation and consequential reputational damage.