On 20 December, Treasury released a consultation paper seeking stakeholders’ views on the ACCC’s proposed digital platform-specific and economy wide competition and consumer law reforms in the DPSI #5 Interim Report (Consultation Paper).

The Consultation Paper frames the questions for consideration in the context of the intersections with other domestic regulations and the range of international approaches, highlighting in particular, regimes for ex ante regulation being introduced in Europe and the United Kingdom. 

Observing that Australia is a smaller market than many of the jurisdictions who are advancing digital platform regulation, Treasury raises the question as to whether Australia should be a global leader influencing global norms and potentially allowing it to address problems quickly or whether to leverage international regulatory approaches and industry undertakings overseas, to align with and benefit from those larger jurisdictions.

Consultation on the proposed competition measures

Treasury is consulting on the merits of the ACCC’s proposed competition measures including the procedural mechanisms and substance of the codes and whether any codes should be mandatory or voluntary. Treasury also highlights a couple of important factors for consideration:

• The trade-off between clearly prescribed conduct rules / prohibitions and allowing for a degree of flexibility in their administration and enforcement to avoid unintended consequences.
• How to balance the regulatory certainty and timeliness of the designation process while retaining some discretion by the decision-maker to accurately target the right entities for designation. Treasury points to a recent example where the appeal process associated with the designation of the Port of Newcastle under the National Access Regime led to extensive litigation.  

Consultation on the proposed consumer protection measures

In relation to the ACCC’s proposed consumer protection measures, Treasury is seeking views on the following general issues:

• the merits of the ACCC’s analysis in relation to the consumer harms resulting from the conduct of digital platforms;
• whether there are other consumer harms that should also be addressed by targeted measures (eg online ticket reselling);
• which digital platform services should be captured, and whether the requirements should apply to all digital platforms, or be targeted to certain platforms or services; and
• whether the measures should be introduced via legislation in the Australian Consumer Law and what the penalties for non-compliance should be.

For scams, harmful apps and fake reviews – Treasury notes that government has already committed to introducing new codes for digital platforms in relation to their obligations to consumers and businesses specifically around scams (ie the Online Privacy Bill).

For the improved dispute resolution measures – Treasury is seeking views on whether a new independent ombuds scheme is warranted or if those functions can be performed by an existing body as well as the proposed notice / action mechanism for disputes and whether there are any alternative approaches.

Unfair trading practices prohibition

Notably, Treasury indicate that the Commonwealth, State and Territory consumer affairs Ministers have agreed to consult on the ACCC’s proposal to introduce a prohibition on unfair trading practices. The Ministers met this September to discuss this issue but no information has been provided on the timing of any consultation process.

What’s next?

Stakeholders have until 15 February 2023 to make submissions in response to Treasury’s questions in the Consultation Paper.

See our in-depth analysis for further information about the ACCC’s findings and recommendations in the DPSI #5 Interim Report.