New Leadership and Harsher Penalties at the ACCC

In March of 2022, Gina Cass-Gottlieb became the new chair of the Australian Competition and Consumer Commission (ACCC), concluding Rod Sims’ tenure as its longest serving chair. This change in leadership has inevitably led to a change in priorities for the ACCC. Are you aware of these changes in priorities and what it means for you or your business? Read on to discover what they are, and how they may affect you.

ACCC Priorities 2022/23:

For the 2022-2023 year, the ACCC has set out a list of priorities. These are:

• Issues relating to environmental claims and sustainability; and
• Manipulative or deceptive advertising and marketing practices in the digital economy; and
• Fair trading issues arising from COVID-19; and
• Issues arising from the pricing and selling of essential services, particularly energy and telecommunications; and
• Improving industry compliance with consumer guarantees, particularly with high value goods such as motor vehicles; and
• Competition and consumer issues relating to digital platforms; and
• Competition issues in global and domestic supply chains, particularly those disrupted by COVID-19; and
• Promoting competition and investigating anti-competitive conduct allegations in the financial services sector, with a focus on payment services; and
• Exclusive arrangements by firms with large market power; and
• Ensuring small businesses are protected by competition and consumer laws and industry codes of conduct, particularly in agriculture and franchising; and
• Compliance with button battery safety standards; and
• Consumer product safety issues for young children

These priorities are in concurrence with the fundamental, enduring priorities of the ACCC being (a) cartel conduct, (b) anti-competitive conduct, (c) product safety, (d) vulnerable or disadvantaged consumers and (e) conduct impact on Indigenous Australians.

Priority factors and consequences:

When deciding whether they will pursue a matter, the ACCC prioritises those which fall within their current priority areas, and will give particular consideration to issues which are of significant public interest or concern, or will help to clarify aspects of law.

Furthermore, the ACCC will rarely involve themselves in individual consumer or small business disputes, isolated events, or solely for the purpose of obtain redress.

Enforcement actions:

Whereupon the ACCC learns of a matter and determines that they will take enforcement action, there are various avenues available to them. The first is administrative resolution, whereby the ACCC recognises the risk from trader conduct as low, and may sign an agreement with the trader to ensure that the conduct of concern stops, and all those harmed by the conduct are adequately compensated.

The ACCC may also issue an infringement notice where it believes that there has been a contravention of the Competition and Consumer Act 2010 (‘the Act’) requiring a more formal sanction, however may still be resolved without legal proceedings.

Finally, in more serious situations such as contraventions of the Act by national traders which will have a significant impact on small businesses and consumers, the ACCC may take legal action. The size of the monetary punishment has increased dramatically since 2018 when the Federal Parliament increased the penalty under the Australian Consumer Law, with companies no longer able to view the fines as a mere cost of doing business.

Note that the ACCC can still decide to pursue other enforcement action measures such as alerting parties’ attention to particular behaviour, or deal with the conduct informally.

Recent cases

Australian Competition and Consumer Commission v Google LLC (No 4) [2022] FCA 942.

One example of the enforcement action undertaken by the ACCC is the Federal Court ordering Google LLC to pay $60 million in penalties on 12^th August 2022 for making misleading representations to consumers about how Google collects and uses their personal data. The proceedings were commenced by the ACCC when they first became aware of this issue.

Australian Competition and Consumer Commission v Trivago N.V. (No 2) [2022] FCA 417.

A further example of enforcement action by the ACCC is the $44.7 million in penalties that the Federal Court ordered Trivago to pay in April 2022 for making misleading representations about hotel room rates on its website. These proceedings were initiated by the ACCC in August of 2018.

These cases help illustrate the priorities of the ACCC, and the increased threat that litigation initiated by this Commission now has.

For further advice or questions regarding competition and consumer law, please contact our Business & Commercial team.