On Thursday 7 March 2024, the Australian Competition and Consumer (ACCC) Chair Gina Cass-Gottlieb announced the ACCC’s 2024-25 compliance and enforcement priorities in her second annual address to the Committee for Economic Development of Australia.
The three key themes underpinning the compliance and enforcement priorities are sustainability, cost-of-living pressures, and the digital economy. Many of the key priorities have carried across from the previous year.
The themes reinforce the ACCC’s focus on consumer protection, returning to the introduction of the Trade Practices Act - fifty years ago this August - as “economic regulation for social and political objectives” that provides “long overdue protection for consumers against a wide range of unfair practices”. Notably, the ACCC did not suggest a similar emphasis of priorities on enforcement of the competition law prohibitions under Part IV of the Competition and Consumer Act 2010 (Cth) in the year ahead, although acknowledged resolutions with undertakings in two resale price maintenance proceedings.
We reflect on the ACCC’s implementation of its previous 2023-24 compliance and enforcement priorities, and provide our outlook for 2024 in our annual Competition + Consumer Insights publication.
2024-25 compliance and enforcement priorities
The ACCC has announced the following priorities for 2024-25:
Consumer, product safety, fair trading and competition concerns in relation to environmental claims and sustainability.
Competition, consumer, fair trading and pricing concerns in the supermarket sector, with a focus on food and groceries.
Promoting competition in essential services with a focus on telecommunications, electricity, gas and financial services.
Misleading pricing and claims in relation to essential services, with a particular focus on energy and telecommunications.
Competition and consumer issues in the aviation sector.
Consumer and fair trading issues in the digital economy, with a focus on misleading or deceptive advertising within influencer marketing, online reviews, in-app purchases and price comparison websites.
Improving compliance by NDIS providers with their obligations under Australian Consumer Law.
Unfair contract terms in consumer and small business contracts.
Improving industry compliance with consumer guarantees, with a focus on consumer electronics, and also targeting misconduct by retailers in connection with delivery timeframes.
Consumer product safety issues for young children, with a focus on the safety of nursery products including furniture, infant self-feeding and infant sleep products.
What’s in, what’s new and what’s out from the 2023-24 priorities?
The majority of the ACCC’s compliance and enforcement priorities from the previous year have been carried across to the 2024-25 priorities, but some of them now have a more targeted focus. In addition to priorities that have been carried across, there are some new priorities.
Consumer, product safety, fair trading and competition concerns in relation to environmental claims and sustainability.
In the 2022-23, 2023-24 and 2024-25 priorities this priority has remained, and been listed first in each announcement. This likely reflects the ACCC’s enduring focus on this priority, and arguably suggests it is the ACCC’s top priority in recent years. The ACCC’s activities in those years demonstrate the ACCC’s strong focus on this area:
In March 2023 the ACCC published the results of its internet sweep to identify misleading environmental and sustainability marketing claims, finding that 57% of businesses reviewed had made “concerning claims” about their environmental credentials;
In December 2023 the ACCC published its guidance for business on making environmental claims; and
On 28 November 2023 the ACCC accepted a court-enforceable undertaking from yoghurt manufacturer MOO Premium Foods Pty Ltd in relation to false and misleading representations regarding “ocean plastic” claims made about its product packaging.
In her address, Chair Cass-Gottlieb noted the ACCC will continue to engage with key industry, environmental and business stakeholders for the use of third-party trust marks and claims in relation to emissions and offsets. She highlighted:
the ACCC has a number of in-depth greenwashing investigations including in the energy and consumer products sectors.
In relation to competition, Chair Cass-Gottlieb foreshadowed that the ACCC plans to issue guidance on the recognition of the public benefit of sustainability and the net-zero transition in its assessment of conduct authorisations, noting that in recent years a quarter of all such authorisations have claimed public benefit of that kind.
Competition, consumer, fair trading and pricing concerns in the supermarket sector, with a focus on food and groceries.
This is a new priority for the ACCC. However, given the direction by the Government in January 2024 to the ACCC to conduct a 12-month price inquiry into competition in the supermarket and grocery sector, and the scrutiny of the supermarket sector more broadly, it is unsurprising that the ACCC has made it a key focus this year.
Chair Cass-Gottlieb noted that the ACCC also has a role to ensure that consumers are not misled and that claims about specials, discounts and advertised prices are truthful and accurate. In particular, she referred to reports from consumers alleging false or misleading “was/now” or other pricing “specials” advertised by the supermarkets.
Promoting competition in essential services with a focus on telecommunications, electricity, gas and financial services.
While the previous year’s priorities also contained a priority relating to consumer issues in essential services, they did not include a priority relating to competition in essential services. This means that the ACCC is now focusing on essential services sectors from a different perspective. The ACCC has also included ‘financial services’ in its list of essential services which are being focused on.
Chair Cass-Gottlieb reinforced that enforcing new gas market regulation remains a priority for the ACCC in 2024. She said:
Generally we have found good levels of compliance with the emergency $12/GJ cap on wholesale gas prices to date. We continue to review information in respect of contracts entered within the price cap period, however the focus of our monitoring is shifting to Gas Market Code compliance, which took effect in September 2023 and applies to gas producers. In December 2023, the ACCC established a new anonymous complaints portal to assist with detecting non-compliance with the Code including avoidance behaviour.
Misleading pricing and claims in relation to essential services, with a particular focus on energy and telecommunications.
This is similar to the previous year’s focus on consumer and fair trading issues arising from the pricing and selling of essential services, with a focus on energy and telecommunications. However, the change from the previous years’ broad focus on consumer issues more generally to the current focus of ‘misleading pricing and claims’ suggests the ACCC has narrowed its focus in these sectors.
Chair Cass-Gottlieb highlighted that mobile phone coverage, data speeds, off-peak tariffs, environmental benefits as examples:
where consumers grapple with a complex decision-making process when trying to differentiate between similar services.
Competition and consumer issues in the aviation sector
This is a new priority for the ACCC. Chair Cass-Gottlieb said the ACCC identified in its first airline monitoring report under the reinstated direction that:
rates of cancellation and delay remain above long term averages and that Australia stands at a critical point in relation to the opportunity for increased competition with the entry of a fourth airline group competitor and more than two competing airlines on one in two domestic routes. In addition, the ACCC continues to receive a high number of consumer complaints in relation to airline services. The reinstating of the ACCC’s role in monitoring the airline industry will allow the ACCC to look closer and follow through on allegations of anti-competitive behaviour and unfair business practices in the aviation sector.
Consumer and fair trading issues in the digital economy, with a focus on misleading or deceptive advertising within influencer marketing, online reviews, in-app purchases and price comparison websites.
Consumer issues in the digital economy have been a key and enduring area of concern for the ACCC appearing in the 2022-23, 2023-24 and 2024-25 priorities. Last year’s priority only specified ‘manipulative or deceptive advertising and marketing practices’. This year, within the broad ambit of ‘manipulative or deceptive advertising’ the ACCC has sharpened its focus on influencer marketing, online reviews, in-app purchases and price comparison websites.
Chair Cass-Gottlieb said that:
the rise of more targeted digital advertising that leverages data on consumer purchasing and searching habits and the high proportion of time spent by Australian consumers online has dominated the landscape.
She noted that:
influencer marketing, online review and comparison tools have become a key to reaching consumers and persuading them to choose particular products and brands. They have also become a tool for some businesses to manipulate and influence consumers decisions.
She referred to the ACCC’s 2023 internet sweep into influencer marketing and online reviews, which highlighted the extent of the issues, with over 80% of influencer posts raising concerns from consumers and more than a third of businesses assessed engaging in concerning conduct in relation to their online product reviews.
Improving compliance by NDIS providers with their obligations under Australian Consumer Law (ACL).
This is a new priority for the ACCC which was prompted by the ACCC has receiving complaints about inadequate mechanisms under the NDIS framework for participants to receive the protections under the ACL.
Chair Cass-Gottlieb said the ACCC has commenced chairing a joint taskforce involving the NDIS Quality and Safeguards Commission and the National Disability Insurance Agency (NDIA). She noted:
this is an important initiative and the ACCC is keen to assist the Safeguards Commission and the NDIA in improving compliance by NDIS providers with the ACL.
Unfair contract terms in consumer and small business contracts.
This remains unchanged since last year’s announcement. Importantly, this is the first announcement of the ACCC’s priorities since the new unfair contract terms regimes came into effect on 10 November 2023. Previously, the consequences for unfair contract terms was that they were void at law; now the inclusion of unfair contract terms in consumer and small business contracts is prohibited, and subject to significant penalties.
Chair Cass-Gottlieb said that the ACCC has undertaken a review of a range of standard form agreements and flagged “there are matters currently under investigation ”. It is expected that the ACCC will be seeking to secure their its conviction under the updated law to send a message to any businesses that may still have unfair terms in their standard form agreements.
Improving industry compliance with consumer guarantees, with a focus on consumer electronics, and also targeting misconduct by retailers in connection with delivery timeframes.
The ACCC has an enduring strong focus on consumer guarantees. While the previous year’s consumer guarantee focus related to high value goods including motor vehicles and caravans, this has now shifted to consumer electronics.
Chair Cass-Gottlieb flagged that businesses failing to comply with consumer guarantees are “the most complained about issue raised with the ACCC and with each state and territory consumer agency” and referred to the $11.5 million penalty imposed by the Federal Court against Mazda for engaging in misleading and deceptive conduct and making false or misleading representations to nine consumers about their consumer guarantee rights, as a “reminder of just how seriously the courts view this behaviour” .
She also said that the ACCC will seek to legislative reform ensure that failing to honour consumer guarantees will be a contravention of the ACL, incurring penalties and direct enforcement by the ACCC. She said that at present the ACCC’s power to pursue consumer guarantees through actions for misleading or deceptive conduct is too narrow to be effective, while consumers may have limited opportunities to take advantage of their legal rights against retailers under the ACL.
Consumer product safety issues for young children, with a focus on the safety of nursery products including furniture, infant self-feeding and infant sleep products.
This priority is continued from the previous year, however the ACCC has narrowed its focus on the safety of nursery products including furniture, infant self-feeding and infant sleep products.
Not all of the previous year’s compliance and enforcement priorities were caried across to this year. The following compliance and enforcement priorities from the previous year were not listed again for 2024-25:
Competition and consumer issues in global and domestic supply chains, with a focus on transport and logistics;
Ensuring that small businesses receive the protections of the competition and consumer laws and small business industry codes of conduct, including in agriculture and franchising;
Competition and consumer issues relating to digital platforms; and
Exclusive arrangements by firms with market power that impact competition.
Chair Cass-Gottlieb also confirmed that the ACCC continues to focus on its enduring priorities relating to cartel conduct, anti-competitive conduct, product safety for young children, consumers experiencing vulnerability or disadvantage, and conduct impacting First Nations consumers. The ACCC has also introduced small business and scams as new enduring priorities, noting the ACCC will continue to support the National Anti-Scam Centre in its mission to detect and disrupt the harm caused by scams.
ACCC to maintain an active approach
Chair Cass-Gottlieb’s address confirms that the ACCC will continue to maintain a very active approach to compliance and enforcement, with a renewed focus on addressing cost of living and sustainability issues, while advocating for reforms to bolster the existing laws protecting competition and consumers in Australia.
The ACCC has published on its website Chair Cass-Gottlieb’s address to CEDA and the ACCC’s 2024-25 compliance and enforcement policy and priorities .