In 2025 and 2026, the successful implementation of the new mandatory pre-merger notification regime (and compliance with that regime) will be the Australian Consumer and Competition Commission's (ACCC) key focus. Interestingly, while consumers are still facing pressures related to the cost of living, it appears that the ACCC primary focus in the coming financial year will be competition law matters.

In her third 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 Australia’s new merger regime and competition in the supermarket and retail sectors, digital economy and essential services will be the ACCC’s key focus in 2025 and 2026. While she was at pains to point out that when markets are not workably competitive, consumers pay the price, Ms Cass-Gottlieb stopped short of announcing any significant new consumer protection priorities other than a continuation of the work the ACCC is already doing.

Implementation of the new merger control regime

As we predicted in our Watchdog Recap 2024, the successful implementation of the new merger control regime (commencing on 1 January 2026) will be a key priority for the ACCC over the next year or so. While Ms Cass-Gottlieb noted that this is not a specific compliance and enforcement priority, it will result in significant changes to merger control in Australia. It will also be a forerunner step for possible enforcement action by the ACCC. Consequently, the ACCC will be focussed on:

• successfully implementing merger reform, including consulting with businesses on draft process guidelines and draft analytical guidelines and ensuring it is appropriately resourced to deal with the new regime;
• ensuring compliance with the mandatory requirements
• taking enforcement action for non-compliance with the regime.

A focus on competition in other industries

Ms Cass-Gottlieb also announced that the ACCC will prioritise competition issues across several different sectors. While competition cases are complex and challenging to investigate, it is worth noting that the ACCC only commenced one cartel conduct case last year. It is, therefore, unsurprising that Ms Cass-Gottlieb announced that the ACCC would be prioritising competition issues across several different sectors, possibly in direct response to that surprising statistic.

In particular, the ACCC will be focussed on:

• anti-competitive conduct in the supermarket and retail sectors that may contribute to higher prices for consumers and unfair treatment of suppliers;
• promoting competition in essential services with a focus on telecommunications, electricity, and gas;
• targeted platform service-specific competition measures in the digital economy to address anti-competitive and harmful conduct while maintaining the right conditions for competition, innovation and growth.

Ms Cass-Gottlieb reported that the ACCC has a robust pipeline of competition matters under investigation. While enforcement activity for breaches of competition laws undoubtedly has a positive flow-on impact on consumers, it is clear that the ACCC’s focus for the coming year will be on achieving better outcomes for consumers through competition law enforcement and not consumer protection.

Nothing new for consumers?

Those attending the CEDA Update could have been forgiven for questioning whether the ACCC has forgotten that it is the competition ‘and consumer’ watchdog. In announcing the ACCC’s enforcement priorities for the year, Ms Cass-Gottlieb made it clear that there will be very little in the way of any new focus on protecting consumers. Whereas last year we reported that the ACCC’s focus would be on achieving timely redress for consumers and the quicker resolution of matters over Court-ordered outcomes, with a focus on easing the cost of living and sustainability (its “Louder, Faster Stronger” approach), the same cannot be said for the coming year. The only new consumer protection priority was on misleading surcharging practices and other add-on costs – with the balance being merely a continuing focus on misleading pricing practices in the supermarket/retail sectors, essential services and aviation sector and misleading environmental claims and sustainability.

Business as usual

In the financial year ahead, the ACCC will continue to focus on:

• unfair contract terms: in particular, harsh cancellation terms, including those associated with automatic renewals, early termination fee clauses and non-cancellation clauses;
• product safety: raising awareness about new infant sleep and toppling furniture standards and e-safety (such as button battery standards);
• unfair trading practices: continuing its advocacy for the introduction of a prohibition on unfair trading practices to ‘close the gap’ in Australia’s current consumer laws;
• NDIS compliance: targeting providers to ensure they understand and comply with their obligations under Australian Consumer Law;
• consumer guarantees: improving industry compliance with consumer guarantees, especially involving consumer electronics.

Conclusion

Given the ACCC’s priorities in 2025 and 2026, it will be interesting to see if it will remain focused on achieving timely redress for consumers and the quicker resolution of matters over Court-ordered outcomes – as we noted above, breaches of competition laws are complex and hard to investigate and, as a result, don’t necessarily easily lend themselves to a practical and solution-focused approach.

For businesses, complying with the new merger control regime will be a ‘must’, as the consequences for not doing so are serious (including mergers being legally void). As we reported in our Watchdog Recap 2024, while the current informal clearance regime will still be available until the end of 2025, parties will be able to voluntarily notify their acquisitions under the new regime from 1 July 2025. This will be particularly relevant for more complex transactions, including global deals requiring multi-jurisdictional filings, because if the ACCC cannot conclude its review of a merger notified to it under the old regime by 31 December 2025, the parties will have to re-notify the merger in 2026.