Law Council Competition and Consumer Law Workshop opening address

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Introduction

Thank you for the opportunity to deliver the opening address to this very important event. It is a pleasure to attend my first Law Council Annual Competition and Consumer Law workshop as ACCC Chair.

It is now about six months since I stepped into this role.

I am committed to maintaining community trust in the ACCC. I will work to ensure it remains a bold and effective enforcer protecting consumers, and promoting competition and fair trading across the Australian economy.

These two roles of the ACCC in competition and consumer protection reinforce each other. 

Competition law is critical for preserving the integrity of markets, so that businesses have the incentive to operate more efficiently, price competitively and offer better products and services to their customers. This delivers benefits to consumers, the economy and the community through lower prices, innovation, and higher quality products. 

In turn, for markets to operate efficiently, we need well-informed and confident consumers who can act in their own self-interest to purchase goods and services that best meet their needs and budgets.

Reflecting on these complementary roles, I want to expand on some areas where I believe the ACCC’s focus is particularly important right now, and that I expect will remain a focus in my time as Chair.

Today I want to discuss a few broad themes.

First, I want to set out my own view of the ACCC’s key priorities for the year ahead – the areas where I see us needing to focus our attention, and the role the ACCC can play in these areas.

I will also set out our current thinking and approach on enforcement and merger work.

Before I go on, I want to acknowledge the outstanding contribution of my predecessor Rod Sims, who I know was a regular attendee at this annual event. After 11 years as ACCC Chair Rod has left in place a high performing, capable and diverse team that is committed to the safety, interests and welfare of consumers and the maintenance of effective competition across the Australian economy.

1. Key priorities for the year ahead

Cost of living

Our economy and community are facing the impact of global and domestic supply chain disruption from the COVID 19 pandemic, climate change and the war in Ukraine and a range of inflationary pressures. As we are all experiencing, these factors are driving up the cost of living for households in staples like energy, food and fuel.

In this context competitive, informed and (in the case of essential services) well-regulated markets are even more important to achieving competitive prices, better quality products and services and more choice. The ACCC 2022 – 23 priorities and work program are informed by this economic and community context.

In the enforcement consumer protection context, we are watching for and ready to take action where businesses make false or misleading comments about the reasons for price changes. Businesses must ensure that the way they describe price increases is truthful, and not use the current economic circumstances as cover for unrelated price rises.

As the competition enforcer, we have an important role in ensuring the maintenance of workable competition that delivers lower prices.

Through our price monitoring roles in key sectors including petrol, electricity and gas we contribute transparency and analysis to essential costs impacting Australian consumers.

Sustainability

Globally and in Australia economies are in transition to a lower-emissions future. At the same time, the impacts of climate change are more frequent and severe.

Consumers are reflecting these heightened concerns about the environment and sustainability in the spending choices they make. Businesses are responding by offering new products and new business models that are or claim to be more sustainable or green, and prioritising sustainability concerns in their own purchasing and procurement decisions.

But in most cases consumers cannot independently verify a business’s or product’s green credentials. If they are being misled it is not only the consumer who suffers – it is also other competitors who have undertaken genuine investment to make their product more sustainable. This is why this is a competition issue as well as a key consumer protection priority.

Our message for businesses is simple - any claim made about sustainability must be able to be substantiated. If the ACCC was to send your business a substantiation notice over environmental claims, could you demonstrate a process that you undertook, or reasonable grounds for the claims? Are they accurate and verifiable?

The transition to a low emissions economy will have a profound impact on markets and sectors, and the ACCC will have a broader role to play beyond consumer law enforcement.

Any significant shift creates risks and opportunities. The transition to a net zero economy is likely to lead to entry of new technologies and competitors, together with the risk that new barriers to entry, or dominant players are established. It will drive demand for new products, new infrastructure and new markets, in turn creating the need for new regulatory approaches and frameworks.

This shift will require considerable and careful work on our part.

For example, the transition to a low-carbon economy may lead to new types of collaboration between companies which may require competition exemptions. Our ability to take environmental benefits into account as part of our “net public benefit” authorisation test means we are well placed to consider proposals, and we are open to engagement.

Digital platforms

Many businesses and consumers have benefitted from digital services. But in the several years the ACCC has been examining digital platforms and services, we have seen concerning instances of conduct impacting consumers, including manipulative practices that harm consumers as well as competition.

The ACCC has produced important, ground breaking work in identifying and addressing market power and conduct of digital platforms that impacts both competition and consumers through our enforcement work and our ongoing market studies.

In our enforcement work we have recently secured significant outcomes against major digital players.

Last month the Federal Court ordered Google pay $60 million in penalties for making false or misleading representations to consumers about the collection and use of their personal location data on Android phones between January 2017 and December 2018.

In April, the Federal Court ordered Trivago to pay penalties of $44.7 million for making false or misleading representations about hotel room rates on its website and in television advertising, and in the same month Uber admitted that it had breached the Australian Consumer Law by making false or misleading statements in cancellation warning messages and Uber Taxi fare estimates. 

We also have two cases in the Federal Court against Meta, one relating to claims about its Onavo Protect ap, and one launched more recently, in March, alleging Meta engaged in false, misleading or deceptive conduct by publishing scam cryptocurrency advertisements featuring prominent Australian public figures. As these cases are before the Court I won’t comment further.

But while we are active in our enforcement role, the major digital platforms create a unique set of competition and consumer challenges that we have also examined through our series of digital platforms inquiries, the first of which was reported on in 2019.

This was followed by our ad tech supply chain inquiry and our five-year Digital Platform Services Inquiry, which has delivered reports every six months into issues including online private messaging, app marketplaces, choice screens and general online retail marketplaces.

We are completing work on our latest report for the Digital platforms services inquiry which will assess the question of addressing harms to competition, consumers, and business users in areas dominated by large digital platforms. We will provide this report to the Australian Government shortly.

Importantly, given our complementary roles in competition and consumer law the reforms considered in that report will address consumer protection as well as competition concerns.

This will be a significant report and I am looking forward to its release and the debate that follows.

Tackling the scourge of scams

One cannot understate the impact of scams on Australians. During 2021, almost $1.8 billion in combined losses were reported Once we consider the fact that about a third of scam victims don’t report their losses, the real figure lost to scams in 2021 was well more than $2 billion. These financial losses are in turn resulting in a significant emotional toll and life changing consequences for individuals, families, and businesses.

This cannot continue. We want to make Australia a much harder target for scammers, and to do that we need to bring together government, consumer groups, the financial services sector and the telco sector.

Three steps are needed:

1. stop scammers reaching consumers by disrupting the means by which they contact would-be victims – whether through phone calls, SMS, email or social media
2. better educate consumers so that if a scam contact makes it through to them, they recognise it as a scam
3. put measures in place so that if a consumer is convinced to attempt to transfer funds to a scammer there is a safety net to prevent this.

The telecommunication sector has made great strides, through the ACMA regulated Reducing Scam Calls Code, which has led to a reduction in phone scam reports to the ACCC of more than 50% in 2022. Across Australia, we are aware of 357 million scam calls being blocked in the first year of the code’s introduction. This has recently been extended to the monitoring and blocking of scam SMS which have filled the gap left by phone scams. Similarly, new rules have commenced to require better identification for high-risk telco transactions.

But other parts of the private sector must step up. Organisations know when they are a regular target of impersonation by scammers. Organisations should actively monitor for, warn about, and request the removal of websites impersonating their brand. Complaining of a branding or copyright violation to a website hosting provider is fast and easily proven relative to, for example, the ACCC requesting a website’s removal for not delivering goods after customer payment.

We also expect organisations to be monitoring their own platforms, services, and transactions for scams and to warn their customers about scam activity.

I want to reiterate six steps the financial sector should take that would make a significant difference in the fight against scams. These are:

• prevent scammers from opening accounts at your institutions
• make sure you have rigorous identity verification processes informed by knowledge of the risks of scams
• ensure your systems can flag and block suspicious transactions
• intervene to warn your customers when you identify suspicious transactions
• introduce confirmation of payees to reduce the losses to scams that we are seeing, especially through payment redirection scams (otherwise known as Business Email Compromise scams)
• stay on top of scam trends and educate your employees about scams – they are on the front line and often the last line of protection.

Australia has recently taken up the presidency of the International Consumer Protection and Enforcement Network (ICPEN), which plays an important role in sharing information and combatting consumer issues in international conduct, such as e-commerce fraud and international scams.

2. Enforcement and mergers – new chair’s perspective

Enforcement

The ACCC is at its foundation an enforcement agency, and it is my intention that we will continue our strong enforcement focus.

Where appropriate we seek to educate and use guidance to promote compliance. But we highly value the strong deterrence effect signalled  when we secure significant enforcement outcomes. This is amplified by the ordering of serious penalties for contraventions.

The early announcement of our compliance and enforcement priorities for the upcoming financial year is designed to focus renewed attention on the importance of compliance with the CCA. While they were announced before I joined in March, I very much endorse them. I will have more to say on a couple of them shortly, but they include consumer and fair trading issues arising from the COVID-19 pandemic, consumer and fair trading issues relating to manipulative or deceptive advertising and marketing practices in the digital economy, and conduct impacting Indigenous Australians, which is an enduring priority for the ACCC.

Another enduring priority is cartel conduct. Price fixing, market sharing, output restrictions and bid rigging continue to pose significant threats to the Australian economy. The ACCC will continue to tackle this threat through initiatives to drive pro-active cartel detection and strong enforcement action.

Earlier this year at the IBA/ABA International Cartel Workshop, we reported that the number of approaches under our Immunity Policy had been starting to trend downward. However, as is sometimes the case with immunity applications, we have recently received a number of markers in close succession and on average we are tracking close to previous years.  It is often the case we receive an uptick in applications on major announcements whether civil or criminal and that may explain recent activity in light of recent charges being laid (and guilty pleas being entered) in the demolition waste disposal industry.

We are also focused on strengthening a number of measures to drive pro-active cartel detection, including through:

• developing a cartel screening tool for bid rigging conduct, which will better enable us to use our data analysis techniques to identify potential investigation targets;
• promoting our anonymous online portal for whistleblowers to report cartel conduct that is generating a good source of high-quality leads to investigate; and
• advancing our intelligence and analytical capabilities through a dedicated Intelligence team and a Strategic Data Analysis Unit which provide significant support to a cartel enforcement program.

While we will continue to refer serious cartel conduct to the CDPP for consideration of prosecution, we will also maintain a strong civil cartel litigation program. A steady stream of cases is the best approach for disrupting and deterring unlawful conduct.

We will continue to take on hard cases that show the reach and strength of the law. The power of the law is illustrated when you take cases that test it. We want to win cases, but in seeking to test the law we will lose some.

Mergers

I wanted to touch on our mergers work, including emerging trends and developments and how we are responding to them. As many of you here will know, there has been a significant surge in M&A activity in Australia and globally in the past couple of years.

In 2021, we experienced a 41% increase in merger notifications compared with previous years, a trend replicated in other jurisdictions.

While we are seeing some signs of this trend easing, we are yet to see a corresponding reduction in our merger review workload. This is due to a small number of significant transactions before us, which I will touch upon later.

Part of this trend is the increased numbers of global transactions for our review. It is unclear whether these large cross border transactions will remain a feature in the current environment as many economies face challenging conditions due to inflation pressures, supply chain disruptions and rising costs of capital.

I have previously noted that merger parties in global transactions appear to be taking a strategic approach to seeking merger clearances by focusing their efforts on a particular jurisdiction or small group of jurisdictions. When this happens, we may have little or no engagement from the parties for a considerable period until suddenly we are told that timing is urgent.

We accept that sometimes there may be legitimate reasons for this approach. But I caution merger parties and their advisers against attempting to leverage positions reached with some agencies to limit the time available for other agencies to consider transactions. We will not hesitate to push back in these cases, so my view is that taking this approach simply slows the entire approval process down.

Similarly, the approach taken by merger parties on remedies can sometimes also contribute to the length and complexity of a review. I expect you are aware of the ACCC’s often stated preference for structural over behavioural remedies. But all remedies, including divestiture remedies, come with risk and uncertainty. That is why we so carefully assess these risks before deciding whether to accept an undertaking.

If merger parties offer a divestiture remedy to us late in the process and then say there is limited time to consider the remedy or no time to find an upfront purchaser due to commercial timing, our response may simply be that the undertaking is not acceptable. It should not be assumed that the ACCC will decide to bear the risks associated with a proposed remedy and just accept the undertaking. 

We encourage advisers to assist clients to engage early with remedy proposals and consider options for upfront purchasers. We know the clients will want to hold out and only offer a remedy if they really feel they have to - however holding out and waiting until the last minute creates risks and delay.  I believe that our processes are sufficiently transparent that there are strong signals quite early when competition concerns are likely. 

We need to discharge our decision-making appropriately. Not only is this required of us, it is the strong expectation of the community amid increased concerns about market concentration and, indeed, costs of living.

We continue to carefully consider and refine our thinking around mergers and conduct that involves commonly held and/or managed minority interests and the extent to which concerns are raised about control and influence across rival firms and the risk of concerted practices.

For example, do such holdings across competing companies have a chilling effect on company decision-making and their incentives to compete? Do they create financial incentives that distort and dampen competition? How is information from different companies quarantined when a party owns a minority interest in two or more? These are not issues that are unique to the ACCC. Around the world, the minority interests of private equity and funds in competing firms are attracting close interest. This is an area about which we will continue to engage closely with fellow regulators here and overseas.

Since joining the ACCC, I have come to fully appreciate the significant collaboration and cooperation that takes place with our international counterparts on these transactions and the importance of this to our decision-making in many reviews.

Sometimes, this cooperation can help us to understand the issues raised and reach a decision on a transaction more quickly. The benefits from cooperation arise regardless of whether the agencies ultimately come to the same view.

We will soon have two merger authorisation applications simultaneously on the public register, including in telecommunications and banking. Since the legislation around merger authorisation changed in 2017 to return the ACCC to its previous role as the first instance decision maker, we have considered a total of three applications. One for each year in 2019, 2020 and 2021.

The fact that we will have multiple merger authorisations on the go at once is significant in itself, but the higher workload is more to do with the significant nature of the matters. Each of the markets involved are of critical importance to our economy and consumers.

Time will tell if this is the beginning of an emerging trend towards more merger authorisation applications.

Our experience with these merger authorisation applications is also relevant to our ongoing thinking in relation to a possible formal merger clearance regime.

While I can’t share a detailed position with you today, I can confirm that the ACCC’s view remains that the current regime is not fit for purpose and presents real challenges. We will continue to advocate for merger reform, particularly to replace the current informal regime.

This comes from seeing first-hand how the absence of a mandatory-suspensory notification regime places us at a significant disadvantage when dealing with merger parties who are willing to push the boundaries of the informal system.

As a result, the ACCC is not always well-placed to effectively assess proposed acquisitions and take steps to prevent those that are anti-competitive. We are concerned that our current informal merger regime does not adequately protect competition.

Other merger reform areas that we are working through include the approach to deal with the challenges with digital platforms acquisitions and incremental acquisitions by large firms that increase already high market concentration in the economy.

3. Conclusion

Our regulatory and enforcement toolkit must always evolve to meet the changing environment in which we operate.

Internally, we continue to invest in our digital transformation and enhancing our data literacy. This will continue through my term so that we identify the right matters, make informed decisions and communicate effectively. We know your clients have stepped up here and we will keep pace.

The new government has made it clear its commitment to increasing many maximum competition and consumer penalties to the greater of $50 million or 30% of turnover.

Past increases have bolstered the continued success of our strategic deterrence-based enforcement model but must always keep pace with the cost of doing business including for the large and global companies we deal with.

The new government has also committed to introducing penalties for proposing or relying upon an unfair contract term. Introducing penalties for breaches of the UCT regime will change business incentives and improve compliance with the ACL.

We know the government can’t progress all things at once, but we look forward to engagement with the government on shared areas of interest including, updating the remainder of our penalty provisions, reforms to our consumer guarantee and product safety regimes and introducing an unfair trading practices prohibition.

This workshop provides a key opportunity for discussion on the most important areas of Australian competition law and practice. It tests contentious propositions and provides a space for vigorous debate. I have offered the messages in this speech in the spirit of informing the debate and raising the stakes for compliant conduct.