The regulation roadmap: Maddocks provides insights for the year ahead in its annual ACCC Year in Review
Maddocks has today released its annual review of the performance of the Australian Competition & Consumer Commission against its own enforcement priorities and the implications for businesses in 2022.
Released a month before the end of the tenure of Rod Sims as Chair of the ACCC, the report found that the past 12 months has seen the consumer watchdog score significant victories in the area of digital platforms and raising penalties for consumer law breaches.
However, the report also found that a lack of visible progress in the area of reform of merger clearance laws and a lack of prosecutions brought by the ACCC for misuse of market power despite the changes to lower the standard for this conduct a few years ago.
Maddocks Dispute Resolution and Litigation partner and editor of the ACCC Year in Review publication, Shaun Temby, said the the report examined the ACCC's now-withdrawn cartel prosecution of ANZ Bank Ltd, Citigroup Global Markets Australia Pty Limited and Deutsche Bank AG.
‘Despite having over 10 years since the criminal cartel laws were first introduced, the ACCC’s internal evidence gathering processes were inadequate for the task,’ Shaun said.
‘Serious questions should also be asked about whether the committal hearing process works effectively or is simply an unnecessary and wasteful duplication of resources.’
The annual Maddocks ACCC Year In Review publication – the only one of its kind produced by an Australian law firm – examines the ACCC’s leading cases and activities in 2021 and considers how well the ACCC performed against its enforcement priorities.
The report also looks at the ACCC’s regulatory, administrative and policy activities beyond pure litigation, with a particular focus on key sectors including energy, healthcare, retail and franchising, and technology, digital platforms and telecommunications.
The report, written by a cross-sector team at Maddocks, outlines developments we are expecting to see in 2022, including:
- a continued focus on suspected cartel behaviour, with a likely pause on new criminal prosecutions and an increased focus on civil penalty proceedings
- significant emphasis on business compliance with likely new unfair contract terms laws and the introduction of penalties for their use – which will be a game changer in this area
- ongoing policy discussions and proposal for possible reform in connection with the Digital Platforms inquiry, including for better regulatory alignment with international laws and greater powers to regulate the growing power of Big-Tech
- further enforcement activity against energy retailers to increase pricing transparency and ensure that savings in wholesale electricity costs are passed on to consumers
- the long awaited Retail Food Group trial should also take place and will be closely watched by those in the franchise sector
- enforcement action against businesses taking advantage of consumer fears and product scarcity due to COVID-19.
This report covers Mr Sims’ final year as ACCC Chair, as he steps down on 20 March 2022 to be replaced by lawyer, Ms Gina Cass-Gottlieb.
Shaun Temby said that the ACCC has had many successes during Mr Sims’ time as Chair.
‘The most significant of these victories has been increasing penalties imposed for consumer law breaches, improvements to the unfair contract law regime though they remain a work in progress, and some world-first regulatory and enforcement success against Big Tech.
‘The ACCC was also one of the few Australian regulators to emerge largely unscathed from the Royal Commission into Banking Services due to its robust approach to enforcement, which is no mean feat.’
Shaun also welcomed the appointment of Gina Cass-Gottlieb as incoming ACCC Chair, taking over from Mr Sims on 21 March.
‘Ms Cass-Gottlieb is one of Australia’s leading competition and regulation lawyers and will bring significant experience in competition law to the role,’ Shaun said.
‘Ms Cass-Gottlieb brings with her experience in public service, having been appointed to the Reserve Bank of Australia’s Payments System Board in 2013, re-appointed in 2018 and appointed recently to the Financial Regulator Assessment Authority.’
‘Ms Cass-Gottlieb’s experience in dealing with complex competition law issues will be crucial as the ACCC confronts a range of diverse range of policy, regulatory and enforcement challenges over the next 12 months competition law will be crucial as the ACCC confronts a range of complex regulatory issues over the next 12 months.’
Note: Shaun Temby is available to interview on the findings of the report.
Maddocks is a proudly independent Australian law firm that works closely with corporations, businesses and governments throughout Australia and internationally. We advise national and international clients across the education, government, healthcare, infrastructure and technology sectors, from our Canberra, Melbourne and Sydney offices. Our specialist expertise includes dispute resolution and litigation, employment and safety, financial services, franchising and insolvency.
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