Key takeaways

• In the wake of cost-of-living pressures, key sectors the ACCC will be focusing on in 2024/25 include supermarkets and essential services (particularly electricity, energy, financial services, gas and telecommunications). The ACCC will also be prioritising competition and consumer issues in the aviation sector, and continue its ongoing focus on the digital economy.
• The ACCC will work to improve compliance with environmental and sustainability claims (often referred to as 'greenwashing'), the enforcement of consumer guarantees (particularly for consumer electronics manufacturers and retailers) and enforce new prohibitions on unfair contract terms.
• The ACCC will continue to focus on its enduring priorities, and has added two new enduring priorities: (1) the protection of small businesses from anti-competitive conduct and unfair trading; and (2) scam detection and disruption.
• 2024 marks the 50th anniversary of the competition legislation in Australia and is a "clarion call" for the ACCC to continue to champion and enforce competition and consumer law. Ms. Cass-Gottlieb noted that the total amount of penalties awarded in the ACCC's competition and consumer law cases in the current financial year to date being imposed by the courts are in excess of AUD 620 million.

The ACCC's enforcement priorities for 2024/25

On 7 March 2024, Ms. Gina Cass-Gottlieb, announced the ACCC's compliance and enforcement priorities for 2024.¹ The key updates and announcements are summarised below.

Environmental claims and sustainability

In 2024/25, the ACCC will continue to prioritise competition, consumer and product safety issues in environmental claims and sustainability. A notable development was the publication in December 2023 of the ACCC's principles-based guidance to assist businesses in making clear and accurate environmental claims.² Through the assistance of the ACCC's Sustainability Taskforce created in 2022, we can expect to see more enforcement action from the ACCC as it has a number of ongoing greenwashing investigations in the energy and consumer products sectors. Many of these investigations were identified following the ACCC’s internet sweep of misleading environmental and sustainability claims and others were identified following direct complaints to the ACCC.

It is also anticipated that the ACCC will issue guidance in relation to recognising the public benefit in facilitating the net zero transition and improvement in sustainability in the ACCC's assessment of conduct authorisations.

Supermarket sector

Following the significant price increases in food and groceries, the ACCC will prioritise competition, fair trading and pricing concerns in the supermarket sector. The work will include the 12-month price inquiry into competition in the supermarket and grocery sector that commenced in January 2024. The inquiry will consider a detailed examination of supermarket pricing practices and the relationship between wholesale prices, including farmgate prices received by farmers and retail prices paid by consumers to supermarkets. Ms. Cass-Gottlieb noted the ACCC's role in ensuring that consumers are not misled and claims on specials, discounts and advertised prices are accurate, and that it was looking into a number of issues following consumer complaints.

Essential services: telecommunications, electricity, gas and financial services

The ACCC will continue to build on the work it has begun and prioritise competition and consumer protection issues in relation to these essential services. Market inquiries in the energy and the financial services sectors have been an important tool to allow the ACCC to examine potential issues that harm competition and consumers. The ACCC will also pay particular focus on the energy and telecommunications sector in relation to misleading prices and product claims, including mobile phone coverage, data speeds, off-peak tariffs, and environmental benefits.

Aviation

The Treasury has reinstated the ACCC's role to monitor the airline industry. Ms. Cass-Gottlieb commented that this would allow the ACCC to look closer and follow through on allegations of anti-competitive behaviour and unfair business practices in the aviation sector. The ACCC published its first airline monitoring report under the new direction in February 2024 and stated that rates of cancellation and delay remain above long-term averages.³

Digital economy

The ACCC will continue its work on consumer and fair trading issues in the digital economy and will focus on misleading or deceptive advertising in influencer marketing, online reviews and price comparison websites. The ACCC signalled that it would pay close attention to the video-gaming industry, in particular in-app purchases. Ms. Cass-Gottlieb cited the 2023 Australian Consumer Law survey which identified that 55% of "problematic" transactions involved online commerce.⁴

Unfair contract terms

The ACCC will prioritise enforcement of the recently introduced prohibitions on unfair contract terms in standard form agreements used by larger businesses in their dealings with small business and consumers, which came into effect on 10 November 2023.⁵ The ACCC has undertaken a review of a number of standard form agreements, and is investigating clauses that seek to unilaterally vary agreements, impose unreasonable fees and penalties, or are otherwise unreasonable and make it difficult for consumers to cancel or terminate agreements.

Consumer guarantees

Consumer guarantees are the most complained about issue raised with the ACCC and with each state and consumer agency. The ACCC has a number of active matters being investigated and other matters before the courts dealing with false and misleading representations to consumers in relation to rights and remedies under consumer guarantees. The ACCC will continue its examination of the automotive and caravan sector, and will be expanding this focus on enforcement to the consumer electronics sector. Ms. Cass-Gottlieb also noted that an emerging issue was delivery delays and that there had been an increase in complaints from consumers in relation to this.

Consumer product safety 

The ACCC will focus on the safety of products for young children with a focus on nursery products including furniture, infant self-feeding and infant sleep products.

National Disability Insurance Scheme (NDIS)

A new priority for the ACCC is improving compliance by NDIS providers with their obligations under the Australian Consumer Law. The ACCC is chairing a joint taskforce involving the NDIS Quality and Safeguards Commission, and the National Disability Insurance Agency. The ACCC will be concentrating on investigations of systemic and/or serious consumer law breaches by NDIS providers.

The ACCC's enduring priorities

Each year, the ACCC remains focused on its enduring priorities, which include cartel conduct, anti-competitive conduct, product safety, consumers experiencing vulnerability or disadvantage and conduct impacting First Nations Australians.

In 2024, the ACCC has announced that it is adding two new enduring priorities to its mandate to capture detrimental conduct to consumer welfare and competitive processes:

• Small business. The ACCC emphasised the vital role that small businesses play in the economy, and has decided to add small business protection as an enduring priority. This decision highlights the ACCC's ongoing efforts to address sector-specific challenges, including protection of competition and consumer laws, and small business industry codes of conduct (particularly in the agriculture and franchising sectors).
• Scams. Ms. Cass-Gottlieb said through the work of the National Anti-Scam Centre, and the cross-collaboration of government and key private sector organisations, the losses reported to Scamwatch in December 2023 were AUD 25.2 million, down 41.7% compared to the previous year (AUD 41.3 million). Despite this being the sixth straight month of declining losses compared to the corresponding month in 2022, the ACCC has included scam protection to its list of enduring priorities, and will continue to work closely with regulators, law enforcement and others to continue momentum.

ACCC priorities for advocacy and reform

Ms. Cass-Gottlieb also provided updates on the ACCC's current priorities for advocacy and reform, which include:

• Consumer Guarantees. Ms. Cass-Gottlieb stated that the ACCC considers reform to the Australian Consumer Law to be necessary to make a failure to honour consumer guarantees a specific prohibition of the Australian Consumer Law that incurs penalties, alongside the current prohibition on false or misleading representations in relation to consumer guarantees. This would help capture systemic failures by organisations to comply with consumer guarantees.
• Scams. The ACCC foreshadowed the possible introduction of a new legislative framework with mandatory, enforceable codes, to ensure Australia becomes the world's hardest target for scammers.

This alert was prepared with the assistance of Naasha Loopoo, Andrew Attard and Karen Chau.

1 For more information regarding the ACCC's 2024/25 compliance and enforcement priorities, including a copy of Gina Cass-Gottlieb's speech, visit the Media Release here.

2 A copy of the ACCC's guide for business on making environmental claims, published in December 2023, is available here.

3 A copy of the ACCC's Airline Monitoring Report, published in February 2024, is available here.

4 A copy of the Australian Consumer Survey, published in 2023, is available here.

5 For more information regarding the changes to the unfair contract terms regime, visit our Client Alerts published in October 2022 (here) and November 2022 (here).