As always, we set out below our views on what we can expect from the ACCC this year.

Mergers

As a key area of interest for Ms Cass-Gottlieb, we expect the ACCC to continue calling for significant merger law reform. The ACCC clearly believes that the current system isn't working and that the hurdles in its path to investigate and block uncompetitive transactions are too high, so it will continue to strongly advocate for change. The changes for which the ACCC are strongly advocating include that parties are required to notify the ACCC of upcoming mergers proactively; merger parties having the onus of proving a transaction isn't anti-competitive; increased disclosure obligations to address perceived information asymmetries; and changes to the factors to be taken into account when assessing whether a merger will lessen competition. In practice, we expect the ACCC to step up its close scrutiny of nationally significant mergers and acquisitions and increase its willingness to challenge potentially anti-competitive transactions.

Consumers markets, retail and franchising

Except in the most serious cases or those of national significance, we expect the ACCC to continue to pursue its flexible and pragmatic approach to enforcement into 2024 by negotiating with businesses to resolve consumer complaints quickly and cheaply. We will also likely witness more infringement notices for mid-level matters. That said, we also expect the ACCC to demonstrate it’s willing to litigate more serious matters that have national significance, such as conduct that potentially impacts the cost of living and vulnerable sectors of the community. Significant litigation on issues such as greenwashing and misleading marketing practices by social media influencers is unlikely.

Unfair contract terms

The one area where we confidently predict an increase in ACCC court enforcement throughout this year is the ’new’ unfair contract terms regime. As businesses have now had over a year between the reforms being enacted and their commencement, they have had ample opportunity to update their standard form contracts to ensure they are compliant. We expect the ACCC to select and make examples of several prominent national businesses to make examples of them by securing penalties in the millions and generating significant media attention to promote the seriousness of the protections under the new regime.

Cartels and anti-competitive conduct

As one of the key competition law areas for which the ACCC is responsible (and therefore of significant interest to Ms Cass-Gottlieb), 2024 should see the ACCC continuing to prosecute anti-competitive conduct through various new court proceedings. The key question is whether this will be the year the ACCC (and the Commonwealth Director of Prosecutions) is prepared to resume criminal prosecution of cartel conduct. Given the finalisation of several historical prosecutions in 2023, we anticipate that there may be a resurgence of civil proceedings in 2024 (and possibly criminal later in the year) to serve as a reminder to businesses that the ACCC takes anti-competitive conduct extremely seriously.

Essential services - Energy

We anticipate that retail electricity prices are likely to continue rising until wholesale costs substantially ease. To protect consumers from rising costs of living, the ACCC will continue to scrutinise retailer conduct regarding price changes, including by monitoring ongoing retailer compliance with the Electricity Retail Code. We may possibly see government intervention to assist businesses and consumers to smoothly transition to a market in which renewable energy generation becomes increasingly dominant. Over the longer term, the East Coast gas market is expected to have sufficient supply until 2028, but southern states will likely face local shortages from 2027, meaning that transporting gas from Queensland will be increasingly important to fill supply gaps. The effects of the GMC are still yet to be measured; however, the ACCC will no doubt be closely watching suppliers to ensure compliance with the GMC and, therefore, apply downward pressure on gas prices. Despite this, we don’t expect significant prosecutions in this sector.

Essential services - Telecommunications

We expect the ACCC to continue with a robust monitoring of the telecommunications sector to encourage improvements in services to consumers, promote competition and regulate the pricing of essential telecommunications services and quality of service issues in the broader telecommunications industry in 2024. Proposed regulatory changes for the NBN and telecommunication services will be watched closely by industry participants and have the potential to impact consumers significantly.

Technology and data

The focus on digital platforms will continue as the ACCC completes its inquiry into digital services. As further reforms to privacy law and the regulation of consumer data collection and handling are enacted, they will further elevate the importance of the ACCC’s regulatory role in this area. We expect the ACCC to continue to critically examine the commercial practices of digital platforms on several fronts, including data handling practices, disclosures to consumers and prevention of scams. Its response to what it finds will be multi-faceted, including calls for more regulation (including the prohibition of ’unfair practices‘ and mandatory Codes for digital platforms) and increased enforcement.

Environmental claims and sustainability

The ACCC will continue engaging with industry on sustainability-related reporting and disclosure through monitoring, reporting and, in extreme cases, enforcement action. We predict that the cosmetic, fashion and food and beverage sectors, in particular, will be in the ACCC’s sights. Given the limitations of the ACL and the ACCC's new focus on prosecuting only serious conduct, we expect few new court cases, but there may well be more infringement notices and other administrative solutions. Ultimately, if the ACCC doesn't see the changes that it desires, we predict that it will call for more regulation to target greenwashing consumer claims specifically.

Closing thoughts

The start of 2024 has heralded much uncertainty in our economy and some markets. However the ACCC’s overall priorities remain largely clear. While merger reform and unfair contract terms will be front and centre, it is the cost of living and impacts on the consumer that will be one of the main catalysts for action. We are thrilled to present this publication as a dynamic overview of 2023 and to navigate you through the major prospects that lie ahead on the ACCC's agenda.