The Australian Competition and Consumer Commission’s (ACCC) 2017 enforcement priorities are largely in many respects a continuation of their areas of focus from last year, plus a few new industries and issues. As reported in our article last week, in 2016 the ACCC were interested in cartel conduct, protecting Indigenous and vulnerable consumers, health (and particularly private healthcare insurers) and compliance with various industry codes.
At his annual presentation to the Centre for Economic Development of Australia, where he launched the ACCC’s 2017 Compliance and Enforcement policy, Rod Sims (Chairman of the ACCC) announced a new focus on:
- broadband speed and performance claims
- consumer guarantees, such as those provided by the airline industry
- new car retailing, in particular, inappropriate remedies for defective cars (sometimes referred to as ‘lemons’)
- the new unfair contract terms law protecting small businesses (even more so than last year)
- unfair selling practices through use of sales commissions and third-party marketing firms.
This year, we will also see the outcome of some current matters before the Court commenced by the Commission in 2016, including actions against Medibank, Kimberly–Clarke, Pastacup, NYK and Flight Centre. We can also expect to see an ongoing focus on the health insurance sector and new court proceedings against at least one health insurer.
As always, the ACCC will be focusing on cartels and anti-competitive conduct, which are an ‘enduring priority for the ACCC’. Areas of interest for the ACCC include price parity deals, the energy sector (where there are two substantial investigations underway), health, commercial construction and agriculture.
As well as announcing the Commissions new enforcement priorities he also commented on a few areas where we can expect to see some changes in the ACCC’s approach.
Relying on comments by a number of Judgements in some recent Federal Court decisions. Mr Sims stated that the ACCC will be making ‘concerted efforts’ to significantly increase the penalties paid by large businesses: predicting that this may (at least initially) reduce the number of agreed settlements, presumably as the business and their advisors adjust to the new approach.
Areas of responsibility
There is nothing worse than being a victim of your own success. There’s no doubt that the ACCC is Australia’s highest profile and well regarded regulator, which leads to it being the recipient of a high-level of complaints across Australia. It is not, however, an organisation with unlimited resources. As such, it is not surprising that Mr Sims emphasised that the ACCC could not carry the enforcement burden alone and would be relying more heavily on other state and federal regulators and agencies.
The importance of strong compliance
Citing recent global trends and strengthening calls for protectionism, Mr Sims reinforced the importance of strong compliance with the law, observing that,
It is in this environment that I make my argument today that for our market economy to work properly, and importantly, to be seen to be working properly, we need high levels of compliance with the Competition and Consumer Act 2010 .
One thing for sure, you can be confident that the ACCC takes seriously its responsibility of ensuring the welfare of all Australians through strong enforcement action. Given the matters currently before the Courts and the array of priorities announced today, 2017 is certainly going to be a busy year for the ACCC.
|Shaun Temby | Partner
Tel +61 2 9291 6287