ACCC jurisdiction and available enforcement options
The ACCC is Australia’s peak consumer protection and competition agency. The ACCC is an independent statutory government authority serving the public interest. Most of the ACCC’s enforcement work is conducted under the provisions of the Competition and Consumer Act 2010.
The purpose of the Competition and Consumer Act is to enhance the welfare of Australians by:
promoting competition among business
promoting fair trading by business
providing for the protection of consumers in their dealings with business.
The Competition and Consumer Act provides the ACCC with a range of enforcement remedies, including court-based outcomes and court enforceable undertakings. The ACCC also resolves many matters administratively. These options are discussed more fully below.
Australian Consumer Law
The Australian Consumer Law is the national consumer law and is applied at the Commonwealth level and in each state and territory.
At the Commonwealth level it is included as part of the Competition and Consumer Act. Compliance and enforcement with the law will be on a ‘one-law, multiple-regulators’ model, with existing consumer regulators enforcing the uniform law.
This policy is consistent with and expands on the principles in the ACL Compliance and Enforcement Guide and outlines the ACCC’s approach to compliance and enforcement more generally.
Prioritisation of enforcement matters and the exercise of the ACCC’s discretion
In enforcing the provisions of the Competition and Consumer Act, the ACCC’s primary aims are to:
stop the unlawful conduct
deter future offending conduct
undo the harm caused by the contravening conduct (for example by corrective advertising or restitution for consumers and businesses adversely affected)
encourage the effective use of compliance systems
where warranted, punish the wrongdoer by the imposition of penalties or fines.
The ACCC cannot pursue all the complaints it receives and the ACCC is unlikely to become involved in resolving individual disputes. While all complaints are carefully considered, the ACCC’s role is to focus on widespread consumer detriment and the ACCC exercises its discretion to direct resources to the investigation and resolution of matters that provide the greatest overall benefit for consumers.
To assist with this determination, the ACCC gives enforcement priority to matters that demonstrate one or more of the following factors:
conduct of significant public interest or concern
conduct resulting in a substantial consumer (including small business) detriment
anticompetitive conduct involving cartel behaviour or misuse of market power
unconscionable conduct, particularly involving large national companies or traders
conduct demonstrating a blatant disregard for the law
conduct involving issues of national or international significance
conduct detrimentally affecting disadvantaged or vulnerable consumer groups
conduct in concentrated markets which impacts on small business consumers or suppliers
conduct involving a significant new or emerging market issue
conduct that is industry-wide or is likely to become widespread if the ACCC does not intervene
where ACCC action is likely to have a worthwhile educative or deterrent effect, and/or
where the person, business or industry has a history of previous contraventions of competition, consumer protection or fair trading laws.
Where appropriate the ACCC may also pursue matters that test or clarify the law.
The ACCC reviews its priorities regularly. In addition to those matters that demonstrate the factors above, the ACCC is currently prioritising its work in the following areas:
consumer protection in the on-line, telecommunications and energy sectors
conduct which may impede emerging competition involving online traders
competition and consumer issues in highly concentrated sectors, in particular in the supermarket and fuel sectors
carbon pricing representations
the ACL consumer guarantees regime
consumer protection issues impacting on Indigenous consumers.
When the ACCC decides not to pursue enforcement action in relation to complaints it receives, it may nevertheless:
provide information to the parties to help them deal with the matter and gain a better understanding of the Competition and Consumer Act even where a possible contravention of the Act is unlikely
postpone or cease investigations where insufficient information is available to it, with a view to later investigation should further information become available
draw the possible contravention to relevant parties’ attention and provide information to encourage rectification and future compliance where the possible contravention appears accidental, of limited detriment to consumers and of limited gain to the business concerned
place the relevant parties on notice about the ACCC’s concerns and the possibility of future investigation and action should the conduct continue or re-emerge
deal with the matter informally where a business has promptly and effectively corrected a possible contravention and has implemented measures to prevent recurrence.
While the ACCC relies on complaints to identify issues and inform its compliance and enforcement activities, the ACCC is not a complaint handling body that seeks to resolve every approach. It is unlikely to pursue matters that:
are one-off, isolated events, unless the conduct involves a blatant and deliberate breach of the law
are more appropriately resolved directly between the parties under an industry code (for example by way of mediation)
involve issues more effectively dealt with at the local level by state and territory agencies (for example by way of individual dispute resolution of a complaint)
are primarily contractual or private right disputes (the Competition and Consumer Act provides complainants with a private right of action in these circumstances).
