Australia: The ACCC announces its 2023-24 enforcement priorities with a continued focus on sustainability and digital platforms

The ACCC's priorities have remained fairly consistent over the last few years, with the ACCC continuing to prioritise areas such as digital platforms, essential services, and financial services. There is also a continued focus on the Commission’s enduring priorities such as cartel and anti-competitive conduct, and product safety. It’s also clear that current issues in the economy, such as the rising cost of living and the price of essential services, have informed the ACCC’s priorities for the year ahead.

Some of the key priorities for this year include:

• Environment and sustainability: consumer, fair-trading and competition concerns in relation to environmental claims and sustainability.
• Essential services: the pricing and selling of essential services, in particular energy and telecommunications.
• Financial services: promoting competition and investigating anti-competitive conduct in the financial services sector.
• Digital platforms: competition and consumer issues relating to digital platforms.
• Scam detection and disruption: supporting the creation of a National Anti-Scam Centre.
• Unfair contact terms in consumer and small business contracts.
• Exclusive arrangements by companies with market power that affect competition.
• Wholesale gas markets: issues in gas markets including compliance with the price cap order.

Among the new priorities for 2023-24 is unfair contract terms in consumer and small business contracts. This is unsurprising given reforms to the unfair contract terms regime that’s come into force this year. These reforms prohibit, and introduce penalties in respect of, unfair contract terms where previously, an unfair contract term could only be voided.

Other new priorities include scam detection and disruption (including to support the creation of a National Anti-Scam Centre) – an area of continued focus for both the ACCC and other regulators such as the Australian Communications and Media Authority - and competition and pricing issues in gas markets.

Of particular interest is the ACCC’s continued focus on environmental claims and sustainability. The ACCC has already increased its attention on this area, having launched an “internet sweep” last year to discover misleading online business reviews and sustainability marketing claims. It found that 57% of the companies reviewed made concerning claims.

However, the ACCC’s focus on environmental issues will not be limited to issues around consumer law and fair trading but will expand to include competition law and product safety. It’s announced the creation of a new internal taskforce within the ACCC, which will attempt to influence issues where there's an intersection between environmental and sustainability and competition and consumer law.

Separately, the regulation of digital platforms and big tech will continue to be on the ACCC’s agenda going forward. In late 2022, the ACCC released the fifth interim report in its five-year “Digital Platform Services Inquiry”, which recommended a range of measures to address the apparent harms from digital platforms to consumers, businesses, and competition. The ACCC has taken issue with some of the business practices of big tech companies, such as alleged anticompetitive “self-preferencing” (i.e., when platforms give preference to their own products and services).

In its report, the ACCC made a number of recommendations, including to propose the introduction of mandatory service-specific codes of conduct for “designated” digital platforms. The Government has already held consultation to consider the need for a new competition and consumer protection regulatory framework for digital platforms (as recommended by the ACCC). The ACCC’s next report in its Digital Platform Services Inquiry, which relates to social media services, is expected to be released soon. There are also ongoing enforcement actions against a number of digital platforms.

Businesses should take note of the ACCC’s priorities for the year ahead and ensure continued compliance with the Competition and Consumer Act 2010 (Cth) and the Australian Consumer Law. Please contact the team at Bird & Bird if you require any advice at this time.

For more information, please contact Thomas Jones, Matthew Bovaird, Patrick Cordwell or Dylan McGirr.

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