Stakes are high – ACCC enforcement priorities 2023

Yesterday, the ACCC announced its compliance and enforcement priorities for 2023.

What are the key areas of focus?

The ACCC will continue to vigorously investigate and prosecute:

• all forms of anti-competitive conduct (in particular, cartels and exclusive arrangements)
• conduct that misleads consumers (especially greenwashing claims)
• the imposition of unfair terms (in relation to consumers and small business)
• non-compliance with consumer guarantees (including vehicles)
• breaches of codes of conduct (dairy, franchising, gas)
• unsafe children’s products.

The ACCC will also closely examine conduct in the following sectors:

• essential services (gas, electricity and telecommunications)
• banking and finance (including payment services)
• digital platforms (dark patterns, subscriptions, influencers).

Why are the stakes higher in 2023?

There are a few reasons:

1. The maximum penalties for breaches of the law increased very substantially in November 2022 to the greater of $50m, 3 x the gain from illegal conduct, or 30% of turnover. 
2. In 2022, individuals were sentenced to jail for engaging in cartel conduct.  We expect this trend to continue.
3. The ACCC has publicly stated that it will be “pushing the boundary” to test the limits of current laws to determine whether they are effective.  This means not only more cases, but novel ones. The ACCC successfully used the same approach under previous Chair, Rod Sims, to advocate for changes to the section 46 misuse of market prohibition (which changed to an “effects” test in November 2017)
4. Our own experience is that since the commencement of the new Chair, Gina Cass-Gottlieb, the ACCC has become even more vigorous in investigating and prosecuting breaches of the law.

What you need to do now

In light of the above, you should consider doing the following immediately:

• undertake a comprehensive audit of your business to identify and review:
  • any arrangements you have with competitors or any exclusive arrangements with suppliers/customers;
  • any greenwashing claims you have made or propose to make;
  • all business operations if you operate in one of the target sectors;
• establish annual training on competition and consumer law compliance for all staff (tailored to your sector, business and areas of risk);
• review and amend your standard form contracts with consumers or small business to ensure they are compliant with the unfair terms regime (by November 2023);
• check your refund, repair, return policies and ensure complaints handling staff understand what they can and cannot say and do to ensure compliance with consumer guarantees; and
• seek legal advice if needed.

What reforms are coming?

In addition to the changes to the unfair terms regime in November 2023, we expect the following issues to be on the horizon:

• a new prohibition that makes non-compliance with the consumer guarantees illegal;
• a new “unfair practices” prohibition which the ACCC has been advocating for many years;
• a potential new law on excessive pricing conduct;
• merger reform – a move to a mandatory suspensory notification regime based on thresholds.