The Australian Competition Authority releases its annual list of compliance and enforcement priorities during the COVID-19 pandemic

On 23 February 2021, the Australian Competition and Consumer Commission (“ACCC”) released its compliance and enforcement priorities for 2021. These priorities provide guidance to industries and businesses regarding those areas which will be a key focus for the ACCC’s enforcement activities in the coming year.

A number of the ACCC’s compliance and enforcement priorities for 2021 reflect a refocusing of priorities that the ACCC had committed to prior to the outbreak of the COVID-19 pandemic in 2020, at which point it was forced to adapt and respond to a number of other, more pressing challenges. Some of the ACCC’s other priorities are aimed at addressing some of the broader competition and consumer protection issues that have been caused, or exacerbated by, the COVID-19 pandemic.

The ACCC’s key priorities for 2021 are as follows:

  • competition and consumer issues relating to digital platforms, including, in particular, progressing studies which are aimed at addressing significant issues in the ‘AdTech’ and ‘apps’ markets. A number of enforcement cases involving digital platforms have also been commenced by the ACCC, and other investigations currently being conducted by the ACCC remain on foot;
  • the travel sector remains a key area of focus for the ACCC, particularly as travel restrictions are eased and the level of domestic and international travel begins to increase. The ACCC has indicated that its COVID-19 Enforcement Taskforce will continue to monitor a number of competition and consumer issues in this sector, including, in particular, the conduct of travel businesses in promoting and selling travel products to consumers with a focus on any misleading or deceptive claims and the implications on consumers from travel and event cancellations;
  • monitoring anti-competitive behaviour in the aviation sector, including, in particular, the domestic aviation sector. The ACCC will be reporting to the Australian Government on a quarterly basis in relation to the prices, costs and profits of the Australian domestic aviation sector and will also be actively monitoring the entry of regional operator, Rex, onto the travel routes along the Australian east coast and its ability to secure access to slots at Sydney Airport;
  • competition and consumer issues relating to the pricing and selling of essential services (including, in particular, the lack of transparency in relation to the pricing and selling of these services), with a focus on electricity and telecommunication providers. The ACCC has indicated that it expects there to be an uptick in the level of enforcement activity being undertaken by it in this area in 2021;
  • promoting competition and investigating allegations of anti-competitive conduct in the financial services sector, particularly in relation to home loan offerings. The ACCC has also indicated that it will be following through on the recommendations from the ACCC’s Home Loan Price Inquiry final report which was released by the Treasurer in December 2020;
  • investigating competition and consumer law issues in the funeral services industry, the key players of which have long been criticised for their use of unconscionable conduct and their exercise of significant market power in order to bundle services and prevent new competitors from entering the market. This is one of the ACCC’s enduring enforcement priorities;
  • competition issues in the commercial construction sector, with a focus on large public and private projects and conduct impacting small business;
  • monitoring compliance with certain industry codes of practice, including the Horticulture Code of Conduct and the Dairy Code of Conduct, in order to address the ACCC’s concerns regarding the supply of certain products across these industries; and
  • ensuring that small businesses receive protection under the competition and fair trading laws, with a particular focus on franchises.

In addition to these enforcement priorities for 2021, the ACCC has also indicated that it will be advocating for law reform in areas where it considers such reform to be necessary. These areas include the National Access Regime under Part IIIA of the Competition and Consumer Act 2010 (Cth) (“CCA”), the merger control regime under Part IV of the CCA and the consumer law framework (including the ACCC’s proposed introduction of an unfair trading practice prohibition).

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Authors

  • Bird & Bird (Sydney)
  • Bird & Bird (Sydney)

Quotation

Matthew Bovaird, Thomas Jones, The Australian Competition Authority releases its annual list of compliance and enforcement priorities during the COVID-19 pandemic, 23 February 2021, e-Competitions Competition Law & Covid-19, Art. N° 99754

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