- Current issues in competition and consumer law
Overview
2.1The Australian Competition and Consumer Commission (ACCC) appeared before the House of Representatives Standing Committee on Economics at a public hearing in Canberra on 11 October 2022 and by videoconference on 14 February 2025, as part of the Committee’s review of the ACCC’s 2021, 2022 and 2023 annual reports.
2.2The Committee raised a variety of issues relevant to competition in Australia and the Australian Consumer Law (ACL). Key competition topics covered at the hearings included mergers and acquisitions, the gas market, fuel taxation, corporate greenwashing, collaboration versus collusion in the context of the Net Zero transition, airlines and airports, and the supermarket sector.
2.3Discussion of consumer protection issues covered scams, the Optus data breach in September 2022, unfair contract terms between large and small businesses, consumer protections for travellers, petrol prices, allegations of misleading pricing practices by the major supermarkets, issues with card payment surcharging, the insurance industry, and the experience of vulnerable customers.
2.4The Committee also asked the ACCC about its data capabilities, key performance indicators and priorities for the coming years.
Competition in Australia
2.5In 2022, Australia received its worst result in the International Institute for Management Development World Competitiveness Yearbook in 25 years, ranking 22nd in a global ranking of the competitiveness of 64 nations. At the 2022 Jobs and Skills Summit, Danielle Wood, the then Chief Executive Officer of the Grattan Institute, stated in a keynote address that the Australian economy is becoming ‘older, fatter and slower’.
2.6Alongside most advanced economies, Australia’s productivity growth has slowed over the past decade, with reduced competition contributing to this. The ACCC emphasised throughout the public hearing that competition is critical in driving greater productivity, as well as efficiency and innovation.
2.7The 2013 Harper Review, which examined Australia’s competition framework, noted that strengthening competition is a ‘necessary national economic challenge’. This remains the case, with the Treasurer announcing in August 2023 a new competition review examining Australia’s competition laws, policies and institutions to ensure they remain fit for purpose for the modern economy, with a focus on reforms that would increase productivity and reduce the cost of living.
2.8At the public hearing in October 2022, the ACCC expressed concern with the level of concentration across the Australian economy. Market concentration refers to the number and size of participants in the market. More than half of Australia’s markets are concentrated, such as in the banking, supermarkets, mobile telecommunications, energy retailing, gas supply and domestic air travel industries.
2.9High levels of market concentration do not necessarily indicate a non-competitive market, though the ACCC has said that it can raise concerns when associated with anti-competitive actions, such as where market leaders deliberately block suppliers from engaging with other competitors. The ACCC told the Committee:
…competitive markets produce the significant economic benefits and rigour that our economy relies upon… [E]ach time we are considering questions in relation to proposed mergers and transactions, we are looking very closely at the questions about current levels of concentration and concerns about any increase to levels of concentration.
2.10Monitoring concentrated markets in the long-term interests of consumers is a key, longstanding objective of the ACCC. The ACCC informed the Committee that it undertakes a range of actions to address issues relating to market concentration. These include investigating allegations of anticompetitive conduct and making submissions and proposals to relevant bodies about regulation and increased oversight where there are significant monopolies in essential services. Additionally, the ACCC noted its work in relation to the Consumer Data Right that ‘seeks to empower consumers to secure competitive offers’. For example, the Consumer Data Right allows consumers to share their banking data (such as their interest rate) with an accredited data recipient to find a better product more easily.
2.11In relation to the ACCC’s role in regulating monopoly infrastructure and monitoring concentrated markets, the ACCC expressed to the Committee that in some circumstances, it does not have the appropriate powers to address monopolies:
We currently do not have really any power to look at how monopolies are exercising that monopoly power unless they are vertically integrated… [W]e are very concerned about having all the appropriate powers and purviews so that competition performs the role it can, and must, economically, in order to spur and assist in improving productivity.
2.12The Committee further asked the ACCC how it drives and promotes competition in heavily concentrated industries. In response, the ACCC told the Committee:
Part of the traditional policy response in those areas has been to consider whether there should be additional regulation… [T]here has been additional regulation of various parts of energy markets which exhibit network effects, and, at periods of time, regulation of telecommunications pricing, and the NBN… an important policy question is whether there needs to be additional regulatory supervision and powers in order to ensure that there can still be entry and further competition in the face of incumbents with such advantages.
Mergers and acquisitions
2.13Ensuring effective merger control in Australia is a core part of the ACCC’s role. The ACCC enforces laws in Part IV of the Competition and Consumer Act 2010 (CCA) which prohibit mergers and acquisitions that are likely to substantially lessen competition. The ACCC assesses mergers and may bring court proceedings where it considers an acquisition to breach the CCA. It is also able to accept court enforceable undertakings offered by merger parties to address or remedy competition concerns.
2.14At the 2022 public hearing, the Committee enquired about Qantas Airways’ proposed acquisition of Alliance Aviation, noting that in Australia, Qantas and Alliance closely compete in providing air transport services to mining and resources companies who require transport for ‘fly-in, fly-out’ workers. Given that the costs of flights may impact the viability of new projects in this sector, the potential acquisition was of concern to the Committee. The ACCC told the Committee that its ‘preliminary view is that there is likely to be a substantial lessening of competition’. In April 2023, the ACCC formally opposed Qantas Airways’ proposed acquisition of Alliance Aviation. The acquisition did not proceed.
2.15In February 2022, the ACCC released a report examining the competition impact of past mergers, which highlighted weaknesses in the informal clearance regime. For example, the report found instances where merger parties distorted or omitted critical information relevant to the ACCC’s merger analysis. The ACCC further outlined the need for reforms to the merger regime in Australia to the Committee. Specifically, the ACCC advocated for the introduction of a mandatory notification regime to improve the effectiveness of merger control in Australia and better align with international best practice.
2.16Under Australia’s long-standing informal merger regime, merger parties were not required to notify the ACCC of a proposed merger or wait for ACCC clearance before proceeding. The ACCC told the Committee that merger parties can strategically ‘either not report at all or report late’, constraining the ACCC in its capacity to do its job. The ACCC further explained:
In global transactions, where most jurisdictions do have a mandatory regime, we can certainly find that reporting may be late or notification to us may be late, which then makes it difficult for us in the context of the regime.
2.17In April 2024, the Australian Government announced reforms to Australia’s merger approval system, introducing a mandatory notification requirement for merger deals above certain thresholds and a prohibition on mergers proceeding without receiving a determination from the ACCC or Australian Competition Tribunal. These reforms, now passed, intend to enable Australia’s merger regime to more efficiently and effectively target mergers that are anti‑competitive, while allowing mergers that are pro‑competitive to proceed faster.
2.18In discussing threshold amounts that should necessitate mandatory notification of the merger to the ACCC, the ACCC told the Committee that ‘though a transaction may be small the effect may be substantial’. The Government’s new proposal allows the ACCC to take into consideration the possible impacts of serial acquisitions (where a number of smaller transactions occur over time that result in serious harm to competition), which was welcomed by the ACCC.
2.19The Committee heard extensive evidence in relation to the need to reform merger laws during its inquiry into promoting economic dynamism, competition and business formation. The Committee’s March 2024 report for that inquiry, Better Competition, Better Prices, recommended mandatory pre-merger notifications to the ACCC for mergers above a suitable threshold, in addition to proposing key questions on merger reform for further research and consultation by the Treasurer’s Competition Policy Taskforce. The Committee’s recommendations were reflected in the changes ultimately adopted by the Government, including new mandatory notification provisions.
2.20After a public consultation process conducted by Treasury, the Treasury Laws Amendment (Mergers and Acquisitions Reform) Bill 2024 was presented in Parliament on 10 October 2024. The bill was passed in November 2024, and the new merger laws will come into effect from 1 January 2026 and apply voluntarily from 1 July 2025.
2.21At the February 2025 public hearing, the Committee sought the ACCC’s views on the new laws. The ACCC advised that it ‘sees this as a most important reform towards our core objective of promoting competition’, particularly through the new mandatory notification provisions.
2.22The ACCC also outlined the advantages for businesses of a more targeted and streamlined approach to assessing proposed mergers and acquisitions:
It's important to emphasise that these reforms also…will assist the economy in its dynamism by establishing faster, targeted, more transparent and certain merger rating so that those transactions which have the risk of anticompetitive impact we will focus on and we will target our resources to. But those many mergers which will assist commercial regeneration—funding of new investment enabling growth to better serve a market will have much more certainty because there will be transparency about our decision-making, which has not been the case to date in the informal regime. There are binding statutory timeframes, and we expect about 80 per cent of notified transactions will be decided in the first 15 to 20 business days, and all of that will rely upon a risk based process. So we consider the regime strikes that right balance between focusing and being able to prevent anticompetitive transactions which have that risk but, otherwise, minimising regulatory burden for non-contentious acquisitions.
2.23The Committee noted that with progress towards compulsory notification, the business community had raised concerns about how much red tape would be created. ACCC stressed that at each stage of its decision-making, the level of information participants must provide would be ‘calibrated to the level of risk’. It further stressed that if the ACCC failed to make a decision on time, this would be deemed as an approval, ‘so we must keep to the timeframes’.
2.24The ACCC further noted that two reviews had been scheduled to assess how the new scheme was performing:
The one-year review is looking at whether the thresholds that have been set are delivering the intended protection. So there are a couple of possibilities there. One is that they're set too high, and there are transactions that should have been caught that weren't, but the other is that they're set too low and we are receiving too many transaction notifications. The three-year one will look at all elements of the regime, which is quite a rapid review, so it will be broad—evaluating whether the reform is delivering the policy objectives for which it's been put in place.
2.25The Committee also asked about additional data the ACCC would be able to collect under the new regime to inform regulator and government decision-making. The ACCC advised it would be collecting data on market participants’ revenue thresholds, on the position of parties in their respective markets, and about the markets themselves (including sales revenue, capacity revenue, capacity size and number of units sold), as well as studying changes over time.
2.26Officials noted the data would enable the ACCC to look at whether there are differences in pricing in certain areas or regions, and that the new data would be added to aggregated Australian Bureau of Statistics data assets so it ‘will become generally available’. The ACCC agreed this enhanced data collection would help inform ongoing policy debate on market concentration and industry structure, and how this affects consumer outcomes, productivity and market dynamism.
The gas market
2.27The ACCC monitors critical sectors in the Australian economy, including petrol and gas, providing analysis of the factors driving price changes. On 19 April 2017, the Australian Government directed the ACCC to conduct an inquiry into the supply of and demand for wholesale gas in Australia and publish regular information on the supply and pricing of gas for three years. On 25 July 2019, this inquiry was extended until December 2025. With energy prices continuing to rise, on 25October 2022 the Government extended the ACCC’s gas inquiry role through to 2030.
2.28The ACCC’s July 2022 interim gas inquiry report raised concerns for the Committee, specifically regarding market concentration, with liquid natural gas (LNG) exporters and their associates attaining influence over close to 90 per cent of proven and probable east coast gas reserves in 2021. The ACCC agreed this market concentration was of concern, and noted three steps it was undertaking to inform policymaking on this issue:
We have written to each of the ventures, raising concerns about aspects of what we have discovered… [W]e're proceeding to look at that through an investigative lens in terms of our powers to ask—and it's still at an early stage—whether there is any anticompetitive conduct there. Secondly, we have proposed that there should be increased access rights to upstream services… And thirdly, we are using our monitoring and our advocacy role to draw attention to the importance of this.
2.29In September 2022, the Australian Government signed a new Heads of Agreement with the east coast LNG exporters to prevent a gas supply shortfall and secure competitively priced gas for the domestic market. The agreed commitments, in place until 1 January 2026, were criticised by Manufacturing Australia, which argued the commitment ‘smashes investment confidence for gas customers while entrenching super profits for gas producers’. The Chief Executive Officer of the Australian Industry Group, Innes Willox, asserted that the deal would see ‘serious and deeply painful increases in the cost of many basic products, of heating homes in winter’. Regarding this deal, the ACCC told the Committee:
The deal has a commitment to supply 167 petajoules, which is certainly in excess of the estimate the ACCC had of the likely shortfall, which was at 57 petajoules. However, that's an estimate based on the producers' and exporters' own figures, and AEMO [the Australian Energy Market Operator] had a range.
2.30The new Heads of Agreement includes a commitment to enhanced transparency and accountability, with quarterly compliance reporting to the Minister for Resources and oversight by the ACCC. The ACCC noted that the previous Heads of Agreement, signed on 21 January 2021, was not complied with ‘in spirit’ by gas producers:
…we will look to see whether the compliance has improved as compared to our past report, in which we concluded that the producers were not complying with the spirit of the Heads of Agreement… We are hopeful that this commitment now from the producers will meet the expectations of what they have promised.
2.31In acknowledging that the new Heads of Agreement and voluntary gas code of conduct may not necessarily be complied with by gas producers, the ACCC told the Committee:
…when we monitor this we will test the question of whether what the industry has come forward [with] and proposed in a voluntary format is effective.
2.32On 22 October 2022, the Treasurer requested that the ACCC, in consultation with Treasury, review the voluntary gas code of conduct and provide advice to improve its operation with the intention of making it mandatory.
2.33The Australian Government implemented the mandatory Gas Market Code as part of the Energy Relief Plan announced in December 2022, which commenced on 11 July 2023 with a two-month transitional period. The ACCC investigates alleged breaches of the Gas Market Code and monitors and enforces compliance with conditional exemptions granted by the Minister.
Fuel taxation
2.34From 30 March 2022 to 28 September 2022, the fuel excise rate was temporarily halved to address cost of living pressures. Despite the excise cut, international oil prices drove petrol prices up, reaching 14-year highs. At the October 2022 hearing, the Committee asked the ACCC what activities it had undertaken with regard to petrol pricing since the reinstatement of the full fuel excise:
…we wrote prior to the reinstatement to each of the major companies, wholesalers and retailers to say we were monitoring and watching closely and that if we saw unexpected abnormal shifts that we did not expect based upon international movements in the international refined petrol price and the usual pattern of price cycles, we would be inquiring into it, and that if we were concerned about either anticompetitive conduct or misleading statements as to the rationale for price rises we would take action.
2.35The ACCC told the Committee it had not seen instances of concerning behaviour causing any abnormal price movements. The ACCC also noted its role in providing consumer updates on the best places to access competitive petrol prices, which assisted in further driving competition:
We expanded our monitoring to cover not only each of the capital cities but 190 regional locations. We are checking that data daily, we are providing updates to consumers online three times a week and we are providing a report about overall movements in our analysis, particularly directed in the cities that have petrol price cycles, and tips as to when will be the cheapest time to buy. We are doing that weekly, on Friday. We are also communicating on social media, so we have customer outreach based upon that monitoring.
Greenwashing
2.36In appealing to the increasing proportion of consumers making purchasing decisions based on the sustainability of products and services, some businesses make claims or omit key information to make their product or service seem better for the environment (or less harmful) than it really is. This practice is called ‘greenwashing’. At the 2022 public hearing, the ACCC identified greenwashing as an enforcement priority, noting the need to maintain community and consumer trust in sustainability claims and protect businesses who make genuine investments in sustainable production.
2.37The ACCC explained that greenwashing undermines the activities of businesses who legitimately invest in sustainability and their transition to Net Zero. The ACCC told the Committee about the implications for competition:
…where we have businesses genuinely investing what can be substantial investments in order to have a more sustainable production process, or to ensure that the products they're selling do meet the claims that they're making, and where others are being misleading or fraudulent in respect of that, we get an unfair competitive situation. So there is both an important business competition aspect and a consumer protection aspect.
2.38Members of the International Consumer Protection and Enforcement Network conducted a global review of randomly selected websites promoting products and services across a range of sectors and found that 40 per cent of green claims made online could be misleading consumers. The ACCC acknowledged this is a ‘high proportion’ and informed the Committee that it was undertaking an internet sweep to understand the extent of greenwashing in Australia. The ACCC explained:
We are working on a significant body of work here, and we are still developing that work. We have already commenced in the past week an internet sweep, checking what claims are made and, just on a straight-out internet sweep on online claims, whether we can see ones that set off alarm bells for us. We will then take further investigative steps.
2.39On 2 March 2023, the ACCC released a report outlining the findings of its 2022 internet sweep of green claims. Of the 247 businesses reviewed during the sweep, the report found that more than half made concerning claims about their environmental or sustainability practices. The sweep led to several investigations of alleged misleading environmental claims across several different sectors. The sweep also helped to inform guidance for businesses on steps to improve the integrity of environmental claims, as well as information on businesses’ obligations under the ACL.
2.40The ACCC told the Committee it was ‘asking businesses to take a rigorous, truthful and proactive approach’ when making claims about their sustainability practices. With consumers unable to verify or assess the truth of a general claim, the ACCC recommended that businesses be ‘clear, defined, [and] limited in their claims’, and refer to trusted certification bodies to support such claims. The ACCC told the Committee that it was working closely with the relevant agencies to ensure trusted bodies have scientific and rigorous processes behind them, such as the Clean Energy Regulator. The ACCC noted that it also produces awareness campaigns for consumers on identifying when a business may be engaging in greenwashing.
2.41In relation to findings of greenwashing at the time of the public hearing, the ACCC noted it had initiated legal proceedings in relation to Kleenex’s flushable wipes, though unsuccessful. The ACCC alleged that labelling the products as ‘flushable’ misled consumers to believe the wipes would disintegrate in a similar timeframe to toilet paper, relying on evidence from Australian water authorities who face significant problems when non-suitable products are flushed and contribute to blockages in household and municipal sewerage systems (known as ‘fatbergs’).
2.42The 2019 trial judge dismissed the ACCC’s case, ruling that the ACCC was required to prove that the wipes had in fact caused or contributed to real harm in particular circumstances. The Full Federal Court dismissed the ACCC’s appeal, though it acknowledged the ‘increasing problem’ that fatbergs pose for households and municipal waste water authorities, suggesting that ‘one response would be to introduce legislation of standards governing the characteristics of what can and what cannot be marketed or sold as “flushable”’.
2.43The ACCC did however succeed in a case against Volkswagen, which was held to account for making false representations about compliance with Australia’s diesel emissions standards. Volkswagen imported more than 57,000 diesel vehicles into Australia between 2011 and 2015, failing to disclose that these vehicles were fitted with a ‘two mode’ software which caused them to operate in one mode for the purposes of nitrogen oxide emissions testing, and another when being driven on the road. If the vehicles were tested in the second mode, they would have breached Australian emissions standards.
2.44The Federal Court ordered Volkswagen to pay $125 million in penalties in December 2019. Mr Rod Sims, the then Chair of the ACCC, stated that Volkswagen had ‘deprived consumers who may have deliberately sought to buy a low emissions vehicle, of the ability to make an informed decision’.
2.45The Committee also raised concerns in relation to the integrity of some carbon credits in the Australian Carbon Credit Unit (ACCU) Scheme. The ACCU Scheme encourages people and businesses to undertake projects that reduce emissions or store carbon, for example by upgrading equipment or changing business practices to improve energy use. Participants can earn one ACCU for every tonne of carbon dioxide equivalent emissions their project stores or avoids. Participants can sell ACCUs on the secondary market or to the Australian Government by entering a carbon abatement contract. On the secondary market, private buyers can purchase ACCUs to voluntarily offset their emissions or meet compliance requirements.
2.46The ACCC noted that the regulatory framework for ACCUs sits with the Clean Energy Regulator, including responsibility for any integrity issues with respect to such credits. However, it said that where a corporation is generally claiming to be moving towards Net Zero and that was manifestly not the case, this would fall within the remit of the ACCC. The ACCC further commented:
To the extent that a legitimately held carbon credit unit is used in a manner to misrepresent its effect or creates an association that's not accurate, then, yes, our jurisdiction would be enlivened, unless it's done in the context of an investment product or service, in which case ASIC [the Australian Securities and Investments Commission] would be engaged… [W]e're working very closely with the Clean Energy Regulator and ASIC to ensure that there's regulatory alignment on these issues.
Collaboration and Net Zero
2.47In accordance with the Paris Agreement, Australia has committed to the global goal of holding the increase in global average temperatures to well below 2°C of warming and pursuing efforts to keep warming to less than 1.5°C. With Australia transitioning to a Net Zero economy by 2050 as per the Net Zero Plan, Committee members acknowledged that collaboration across sectors may be desirable. The Committee asked the ACCC how it would draw the line between collaboration and collusion where financial institutions or others work together in relation to Net Zero.
2.48The ACCC told the Committee that where ‘public benefit outweighs a diminution in the competitive dynamic’, it has legislated capacity to allow exemptions and enable greater industry collaboration. As the economy transitions and market power transforms over the Net Zero Plan period, the Chief Executive Officer of the ACCC noted:
We see, increasingly—as do other jurisdictions—a real place for competition and consumer focus at the table in many of these transition moments… I think you'll see a little bit more of the ACCC putting itself in those discussions.
Airlines and airports
2.49The Committee’s inquiry into promoting economic dynamism, competition and business formation received considerable evidence via public hearings and submissions regarding the need for airport slot management reform, including from airlines, airports, former chairs of the ACCC, former chair of the Productivity Commission Mr Peter Harris AO (author of the 2021 Review of the Sydney Airport Demand Management Scheme, known as the ‘Harris Review’) and others. The Committee’s report for that inquiry ultimately made a number of recommendations in relation to slot management, some of which were reflected in later reforms adopted by the Government—in particular, significant reforms to the demand management framework for Sydney Airport, including the appointment of an independent slot manager.
2.50At the February 2025 public hearing for the current inquiry, the Committee raised issues with the increasing prices of flights and airport services, and sought the ACCC’s views on the recent steps by the Government to reform slot management at Sydney Airport. The ACCC advised that ‘[w]e do consider that these reforms are critical’:
The rules that had sat for quite some time in relation to slot management had advantaged the incumbents, particularly Qantas and also Virgin. Certainly it's one of the aspects that over a substantial period Rex had pointed to as being problematic for them to expand to higher volume and more profitable routes. The reforms that have been announced are important. … The critical point is to move from a situation where currently there's a representative of each airline making these decisions, which manifestly does not have the required independence and, in fact, poses conflicts.
2.51The ACCC noted the successful passage of the Government’s Sydney Airport Demand Management Amendment Bill 2024 in November 2024 and said ‘We very much welcome the reform and are eager to see how it is implemented.’
2.52The ACCC also noted the positive impact of the Government’s introduction of strengthened penalties for misconduct:
…our experience does confirm—and it is why the ACCC has been a strong advocate for a higher penalties, because, in the ACCC's experience, it is very clear, which was why we really welcomed that change—that, if penalties are at a level that is just seen as a cost of doing business by a larger company, the company does not have a financial incentive to comply. For example, we have certainly seen that, after the $100 million penalty that the court imposed on Qantas, plus the $20 million consumer remediation, there has been much more attention given by larger businesses in questions raised about approach et cetera. So we can see it is definitively important in the incentives that are set up to be compliant.
Supermarkets
2.53At the 2025 public hearing, the Committee was also particularly interested in the ACCC’s work on competition in the supermarkets sector.
2.54In January 2024, the Government directed the ACCC to inquire into Australia’s supermarket sector, including the pricing practices of the supermarkets and the relationship between wholesale, including farmgate, and retail prices. The ACCC had also commenced legal proceedings against Coles and Woolworths for alleged misleading pricing claims.
2.55The Committee asked if the ACCC saw supply-side issues around land-use policies as a barrier to entry for competitors. The ACCC advised that its interim report did note the number of properties held by Coles and Woolworths, and that the final report (due by the end of February 2025) would ‘identify this further’. The ACCC further stated:
If we were to see properties being acquired and held either for the purpose or the effect of impeding the entry of other competitors, that would be a competition issue. It would be a question for us to consider under our powers in relation to anticompetitive conduct.
2.56The ACCC also noted that after its first grocery inquiry in 2008—which identified restrictive provisions in leases by Coles and Woolworths preventing comparable supermarkets from operating in the same shopping centre—Aldi had been able to significantly expand its footprint, ‘reinforcing… that this is a very important area of focus.’ The ACCC also said it supported steps by federal and state treasurers to refresh national competition policy and reduce development approval timeframes, commenting that:
We think, at both a council level and a state and territory level, it is important to open up a greater opportunity for the development of supermarkets—and, frankly, other commercial developments—in areas which, at the moment, have either prohibitions or very long timeframes and onerous processes, because it certainly does indicate a barrier for new entrants, including for smaller participants who want to expand.
2.57The ACCC said it was also working to address information and bargaining power asymmetries between the major supermarkets and suppliers, and to increase awareness of the recently strengthened food and grocery code, which the Government made mandatory in 2024:
…one of the aspects we did identify in our interim report in the supermarket inquiry…is that many suppliers report facing significant information asymmetries, in negotiation and then in the way in which prices are translated and implemented under their contracts, and also significant bargaining imbalance. The code becoming mandatory and other key changes are important to assist to address these questions. We have found in our engagement, both in terms of the code and also more broadly, in terms of the horticulture code and other aspects where we engage with the farming community and suppliers, that there is both a lack of knowledge, at times, of the way in which the current code and structures can benefit them and also some lack of confidence, where they raise a concern, in the outcome. So the purpose of the guidance and engagement is both to increase their knowledge and also to increase their confidence about the processes we will have underway.
2.58The Committee also asked the ACCC about its work on unit pricing and ‘shrinkflation’, noting that the Government had recently funded the ACCC to undertake an awareness-raising campaign on this issue. The ACCC noted the operation of the Unit Pricing Code, a mandatory code implemented in 2021:
We certainly do get a range of consumer contacts and complaints relating to shrinkflation, so there is observation of it. One important aspect there is that, if the Unit Pricing Code operates effectively, it will identify where, in effect, prices have actually increased per relevant unit. All the issues that have been raised about unit pricing that is illegible or in small font or not in a position where it can be seen or is even absent, and the changes that came with the legislative change towards the conclusion of the last parliamentary period, will also be important in the Unit Pricing Code, but that will be an engagement that will be at a consumer level, including with shrinkflation, in order for consumers to understand what tools they should have and, in a range of retailers, do have at their disposal, so that they are aware of them and, if they are confused or consider that misleading claims are being made, they'll be better and more reliably able to report them.
2.59The ACCC noted that with the current elevated cost of living, more consumers were reporting doing a price comparison before going shopping, and that this made the effectiveness of the Unit Pricing Code even more important.
2.60The Committee also discussed the ACCC’s oversight of supermarkets from a consumer protection perspective, as summarised later in this chapter.
Consumer protection
2.61The ACCC told the Committee that the ACL is active and powerful, an essential protection for consumers and an important underpinning of competition in Australia. Out of the more than $200million in penalties imposed by the ACCC in the preceding year at the time of the public hearing in October 2022, the ACCC noted that the majority was due to consumer law contraventions.
2.62The ACCC identified areas of the ACL which could be further strengthened—notably, unfair trading practices, such as where online customers are given limited time to decide whether to agree or accept terms. The ACCC explained:
There can be choice screens in an online environment which are framed both to confuse and to play to the behaviourally likely approaches of the consumer such that the consumer accepts terms or becomes involved in a subscription trap. These are practices where, if there's not misleading or deceptive conduct, our experience is that we don't have a sufficient capacity to take action. This is particularly reinforced in the case of digital transactions and so much happening online.
2.63The ACCC also noted the need for reform with respect to general safety provisions for all products brought to the Australian market, as well as breaches of consumer guarantees:
…the ACCC can seek orders to have a court order compliance with a consumer guarantee; however, we cannot take proceedings for contravention and penalties if consumer guarantees are not honoured.
Scams
2.64Scam detection and disruption has become an enduring priority of the ACCC. The ACCC analyses data collected through its Scamwatch website to identify trends, monitor financial losses and inform scam prevention strategies. The ACCC also informs the public about current and emerging scams through Scamwatch, as well as through social media and other engagement work.
2.65Every year, the ACCC receives approximately 280,000 reports to Scamwatch, or around 800 per day. On financial loss due to scams, the ACCC told the Committee at the October 2022 public hearing:
Last year - between what was reported to Scamwatch and what we were aware of engaging with financial institutions, law enforcement, ACMA [Australian Communications and Media Authority] and ASIC—we had $1.8 billion losses reported. That is a significant understatement because, potentially, at a maximum, a third of scams get reported to us. We did a conservative estimate of over $2 billion of losses.
2.66The ACCC went on to note that between 1 January 2022 and 26 September 2022, Scamwatch received 167,000 reports with over $400 million reported lost. The ACCC noted that this loss ‘represents a 100 per cent increase in losses compared to the same period the year before’.
2.67With such significant losses, the ACCC called for increased resourcing to disrupt scams, and specifically to resource a national anti-scam centre. Speaking about the emotional and economic impact of financial losses due to scams, the ACCC told the Committee:
It results in families losing all their savings. The trauma at an individual level for families is incredibly significant. On an economywide level, we are losing the effect of what would otherwise be savings and consumption. So we are looking to have the resources for a one-stop shop in a scam centre that would coordinate across all of the agencies and the private sector that we need to work with so that we can make Australia the hardest target for scammers. It is feasible, but there will need to be a step up in the resources that we can put into it.
2.68In putting forward reasons necessitating increased funding, the ACCC pointed out that most scams originate outside Australian jurisdiction, requiring the ACCC to work with other agencies, the private sector and digital platforms to help prevent scams reaching consumers.
2.69The ACCC also noted the increasing sophistication of scams, and its intentions to work more closely with banks to prevent financial loss:
…a national scam centre would help to educate consumers so that they recognise a scam. This is not simple, because, actually, there is a lot of sophistication and change, and there is a need to refer to specific scams—the recent 'Hi Mum'/'Hi Dad' scam is an example… Finally, and very importantly, we wish to work much more closely with banks so that they do confirmation of payee, where, even if the scam has got through to the user, the money isn't paid.
2.70Scams ended up costing Australians more than $3 billion in 2022. As part of the 2023-24 Budget, the Australian Government announced a $86.5 million package to combat scams, notably headlined by the establishment of a National Anti-Scams Centre (NASC).
2.71The NASC was launched on 1 July 2023 as part of the ACCC, combining the expertise of government and the private sector to ‘disrupt scams, refer victims to support and raise awareness amongst consumers of the risks from different scams’.
Optus data breach
2.72The ACCC received over 600 reports to its Scamwatch website between 22 September and 4 October from Optus customers noting their concern about the September 2022 Optus breach. The ACCC commented:
They [consumers] are anxious. They don't feel they know, sufficiently, what is the impact on them, the risks they face and exactly what information of theirs has necessarily been divulged… They're reporting scams, in some cases, that take advantage of the Optus breach… Some have reported being contacted by parties who say they're Optus or parties who say they're the credit reporting agency that is being retained to provide some assistance. In some cases, they say that they're myGov responding. So, because the data does include personal information, there's a capacity for a scammer to personalise a contact and to also misrepresent who they're representing.
2.73Following the Optus data breach, the Australian Government amended the Telecommunications Regulations 2021 to provide greater protection to Australian consumers. The amendments enable telecommunications companies to temporarily share approved government identifier information (such as driver licence and passport numbers) of affected customers with Australian Prudential Regulation Authority (APRA)-regulated financial services entities, to allow them to implement enhanced monitoring and safeguards for customers affected by the breach.
2.74The ACCC noted it was working with APRA, the Office of the Australian Information Commissioner and the Privacy Commissioner to facilitate the closer coordination of data sharing between Optus and APRA-regulated entities appropriately. The ACCC told the Committee:
We expect these financial institutions to take very seriously the commitments and that they are seeking to receive the data to assist in protecting their customers. However, if there are any even suggestions that there is a breach, should there be any going beyond the use of the information, then that may be both a breach of the Privacy Act and also misleading and deceptive conduct in not complying with a commitment that has been given to the ACCC.
Consumer data privacy
2.75A lack of transparency in relation to how digital platforms collect, use and share consumers’ information not only raises privacy concerns, but may also constitute misleading or deceptive conduct under the ACL. In responding to questions on the protection of consumers’ personal data, the ACCC noted its membership of the Digital Platform Regulators’ Forum:
…we are working together with the Privacy Commissioner, ACMA and the eSafety Commissioner in order to bring together the various aspects of protection data privacy: the impacts on consumers, the regulation of each of the broadcasters and communications agencies, and e-safety. So we sit together and seek to bring all of the perspectives together in a holistic way.
2.76At the time of the 2022 public hearing, the ACCC noted that its fifth interim report for the digital platform services inquiry was soon to be released, focused on regulatory reform and whether the ACCC’s existing powers should be supplemented. The ACCC has since published the fifth interim report, as well as the sixth, seventh and eighth interim reports. The ACCC is required to provide the Treasurer with an interim report on the digital platform services inquiry every 6 months until the inquiry concludes with a final report, to be provided by 31 March 2025.
2.77The ACCC informed the Committee about legal action it has taken against platforms for misleading consumers about the collection and use of their personal data. For example, the ACCC initiated proceedings against Google for making misleading representations to consumers about the collection and use of their personal location data on Android phones between January 2017 and December 2018. The ACCC told the Committee:
We have received a court finding of a contravention because despite the fact that phone users believed that they had switched off the location data toggle actually there was another which was set on by default that they were not aware of. They were using straight-out misleading and deceptive conduct and misleading forward fraudulent conduct contraventions, so we have had court success.
2.78Google was ordered to pay $60 million in penalties. The Federal Court also ordered Google to adjust its policies to ensure a commitment to compliance, as well as provide training to its staff about the ACL.
2.79The ACCC also noted action underway against Meta regarding the use of data in relation to the Onavo Protect app. In July 2023, the Federal Court ordered two subsidiaries of Meta, Facebook Israel and Onavo, to each pay $10 million for engaging in conduct which misled the public when promoting the Onavo Protect app to Australian consumers. Onavo and Facebook Israel shared the personal activity data from users collected by the app (in anonymised and aggregated form) with Meta for commercial benefit.
Small businesses and unfair contract terms
2.80With small businesses an important focus of the ACCC, the regulator undertakes a range of compliance and enforcement actions to help small businesses benefit from the available legal protections against unfair contract terms since these were extended to cover small business standard-form contracts in November 2016. The ACCC wrote to the Committee about a variety of successful compliance and enforcement actions, either through seeking that the unfair term be removed voluntarily, or through court action.
2.81For example, following litigation initiated by the ACCC against Fujifilm Business Innovation Australia Pty Ltd (Fuji), the Federal Court of Australia found that a number of Fuji’s small business contracts contained unfair contract terms. Fuji, which supplies a range of business products such as printers on a lease basis, admitted that the contract terms were unfair, and consented to the orders made by the Court, including an injunction which prevented Fuji from relying on and entering into any small business contract containing the unfair terms.
2.82Another example of the ACCC’s compliance work concerns Maxgaming Qld Pty Ltd (Maxgaming), the largest supplier of monitoring, gaming and maintenance services in Queensland, servicing hundreds of licensed gaming venues including small business sports clubs, pubs and other venues. The ACCC considered various terms used by Maxgaming in its contracts likely to be unfair, including a rollover clause allowing for automatic renewal of the contract unless the customer cancelled in writing within a specific time, and without any obligation on Maxgaming to provide notice to the customer that the contract was about to expire. The automatic renewal locked customers into the contract for long periods of time, in some cases up to six years.
2.83Following an ACCC investigation, Maxgaming acknowledged the terms were likely unfair and offered the ACCC a court enforceable undertaking committing not to include these terms (or similar terms) in future contracts, and not to rely on these terms in existing contracts, among other commitments.
2.84In November 2022, Parliament passed changes to the CCA strengthening penalties for businesses using unfair contract terms in their standard form contracts with consumers and small businesses.
2.85The increased penalties, which came into effect November 2023, ‘serve as a strong deterrent message’ to companies to comply with their obligations and not mislead or act unconscionably towards consumers. Having advocated for such reforms, the ACCC noted in its 2022-23 annual report that it would ‘ensure consumers and small businesses, including franchisees, receive the protection of these new strengthened laws’.
Travel protections
2.86The ACCC educates consumers and businesses about their rights and obligations under the ACL, including how the ACL relates to travel delays and cancellations. The ACCC can investigate if a business misled consumers about their consumer guarantee rights, and take compliance and enforcement action.
2.87Under the consumer guarantees of the ACL, airlines are required to supply services (such as flights) within a ‘reasonable time’ after being delayed or cancelled. The Committee enquired as to whether a ‘reasonable time’ needs to be more clearly defined. The ACCC responded:
There is always a question both of evidence and of the satisfaction of the court as to whether those reasonable grounds are made out. So there is uncertainty in it… [I]t has been reported, and our monitoring shows, that performance has improved over the initial periods, which were significantly disrupted when flights returned after COVID. In some areas we have experienced that greater codification can actually make enforcement even more complex. So it's not a simple question…
2.88The ACCC acknowledged that protections afforded to consumers when flights are delayed or cancelled in Australia are not as ‘specific’ in nature as European equivalents. With demand for domestic travel returning to pre-COVID levels at the time of the 2022 public hearing, the ACCC commented that it had a ‘greater focus’ on ‘whether there is sufficient protection’ for consumers in this regard.
2.89In relation to COVID-related travel refunds, the ACCC told the Committee:
It was a situation in which the consumer guarantee, in certain cases, did not apply because, for instance, travel restrictions were a separate matter and were stated to be outside the industry participant's capacity. But, through significant work, in conjunction with the ACCC, many members of the industry offered either refunds or credits… The other aspect is, at times, when consumers purchase on credit cards, they can get a refund through their credit card provider, depending upon the provider.
Petrol prices
2.90The ACCC has a long-standing role monitoring petrol prices. At the February 2025 public hearing, a number of Committee members raised issues with unusually high petrol prices in specific locations—such as Mudgee in regional New South Wales and Melton in outer Melbourne. Members were concerned that although such locations were serviced by multiple petrol stations, creating ‘the semblance of competition’ (in the words of one Committee member), prices were typically still significantly higher than in surrounding areas, potentially by 30 to 80 cents per litre.
2.91The ACCC advised that it had investigated prices in Mudgee:
We looked not only at the immediate surrounding area but also at other areas in New South Wales that had similarities in terms of either distance from where the fuel is being imported or the extent of competition. … We monitor both pricing in the capital cities and the overall pricing in…190 locations in total. We also put recommendations to consumers relating to the use of fuel price apps, because, particularly in metropolitan and larger regional areas, there can be up to a 40c difference and, in some cases, a 50c difference for a short drive. However, there are some regional areas where there are few competitors, and some of this is playing out where there is not enough rivalry to pass on the benefits of lower prices and price restraint.
We ask ourselves…if there might be some coordination happening that could be a competition problem. We look at that in order to ask, 'Should we look at that as potential anticompetitive conduct?' But we did not have evidence of that, in looking at the comparison.
2.92Regarding prices in Melton, the ACCC acknowledged that prices tended to be higher than the Melbourne average. Pressed on what residents or the ACCC could do to address the situation, the ACCC stressed that its visibility into the issue in Victoria and its powers to respond were limited, with these being ‘complex cases from an enforcement perspective’:
There are a number of points that are relevant in our powers. One is the consideration that we give through petrol monitoring, and we do consider that there is a gap in Victoria because there isn't a fuel price transparency scheme…some of the benefits of fuel transparency schemes are both the ability for there to be choice for the motorists and, in addition, that it has that benefit of more sunlight because you can actually, in a mandatory sense, see…who's moving up and down when. So…we think would be valuable.
Secondly, we can, in a monitoring role, look more closely in a study sense. We do need to carefully think about where we apply that, but that is one option. The other, which, when you are describing the price adjustment behaviour, is on the question of whether there are concerted practices happening here…short of coordination—a sharing of information. That would mean that there is less competitive and commercial tension, which has an effect of a substantial lessening of competition. The ACCC did, a number of years ago, commence a case actually looking at pricing across Melbourne in relation to the question about whether the sharing of data by petrol retailers through informed sources was enabling a capacity for coordination. The ACCC did ultimately settle at the time, on the basis of there being full transparency and availability for consumers, to see the data on a sunlight basis. If there were to be evidence that there was actually coordination, we would look at that very closely. We would investigate, and we would consider that real consumer detriment and competition detriment, which we would then look at in the enforcement sense.
Apart from that informed-sources action, there were previously actions that the ACCC had taken in relation to movements in pricing and where they appeared to have elements of contemporaneity and what, at times, the previous chair called synchronised swimming. In a number of those cases, the courts did pause before finding a contravention, to the extent that, in the absence of very clear evidence of an agreement relating to the price setting, they felt that there hadn't been sufficient evidence and that there might have been factors, such as an increase in terminal-gate price or other factors, which meant that most of the participants moved in a similar timing. If we look at our toolbox, we've got monitoring and investigation as to whether there is anticompetitive behaviour. There is complexity, though. They are complex cases from an enforcement perspective.
2.93The ACCC further noted that investigating and pursuing such cases represented ‘a resourcing cost for the ACCC and something that would need to balance against our existing priorities.’
Supermarkets
2.94The Committee was also keenly interested in consumer implications of the high market concentration in the supermarket sector, including allegations of price gouging. The Committee asked the ACCC what could be done, prospectively, to avoid the price gouging of customers, and whether the ACCC had the necessary powers and resources. The Committee noted suggestions by some stakeholders—including a report by Prof Allan Fels commissioned by the Australian Council of Trade Unions, released in February 2024—that Australia adopt a pricing commissioner model.
2.95The ACCC advised that it did not currently have a price-setting role or powers, and that ‘quite complex questions’ would arise for a hypothetical pricing commissioner in the context of groceries:
It's important to differentiate. We have important powers…in terms of misleading and deceptive conduct in pricing practices. We are looking at that not only in the supermarket sector but in the retail sector more broadly. …
What we do not have is a price-setting role. While Professor Fels's report on behalf of the ACTU [Australian Council of Trade Unions] did recommend a new price commissioner role, the ACCC does not have that role. Provided that parties are not being misleading and deceptive in their price representations or in the quality and other product claims they're making and also are not engaging in predatory pricing which has anticompetitive effects, we do not have power over it. The government has recommended a range of changes, including, for instance, in relation to unit pricing, and has also given the ACCC funding to ensure that we are very closely monitoring pricing practices from a misleading and deceptive conduct perspective and also in relation to the additions to remedies and sanctions that can be taken on unit pricing, all of which helps an ability to best compare and get value for consumers.
But there are quite complex questions that would rise for a pricing commissioner, if there were to be a government or parliamentary decision to have one. There are, of course, multiple products, multiple categories and multiple cost inputs, and, therefore—whether you would consider that in terms of essential products and not all products—there are many difficult questions there. We have a very important capacity to protect consumers and to ensure that representations deliver value for the expenditure from the family budget, in accordance with the pricing claims, but it would need some very careful consideration. We would consider that this committee, in the future, and others may want to think about whether to introduce a new pricing commissioner control in that way.
Card payment surcharging
2.96The Committee also asked follow-up questions regarding the ACCC’s submission to the inquiry on payments and surcharging by the Reserve Bank of Australia (RBA). The ACCC noted that it receives consumer complaints concerning alleged excessive surcharging for card payments (such as debit and credit card payments), but that ‘[a]t times, what we find is that consumers believe it’s overcharged, but actually the costs were reflective of the charge.’
2.97The ACCC noted that surcharges were handled differently from other fees and charges in Australia, which are generally incorporated into a single end price, and that this discrepancy confused consumers:
Australia—and we think this is a significant benefit for Australia, compared to what each of us would experience when you're in the US, Europe or the UK, where there are multiple other fees and charges that are included on top of the presented price—largely has a single price, a unified price approach. These surcharges are an exception to it. For instance, the government made that decision some time ago when introducing the GST that it should be a price inclusive of GST so that consumers would not be confused that the price that was advertised or up on the board at the coffee shop was the price you were actually going to pay, whereas now there can quite often be poor disclosure. Those sorts of aspects we wanted to draw out in the submission—that the current regulatory framing is actually, in part, confusing consumers.
2.98The ACCC reported that it had recently received Government funding to take more compliance and enforcement action on surcharging, and had taken action on overcharging ‘where it was, for instance, large ticketing supply companies or [other] large companies’. However, officials said it was difficult to pursue enforcement when overcharging was spread across a very large number of small merchants, with current compliance issues skewing ‘towards smaller business and microbusinesses’.
2.99The ACCC said it was instead looking at an education and compliance campaign, with a warning process to make small merchants aware of their obligations. The ACCC suggested that ‘consumers are particularly concerned and upset … more about the lack of disclosure, or equally as much about the lack of disclosure, at the point of sale as they are about having add-on costs that they feel are unfair’, and advised that its education and compliance campaigns would address these transparency issues.
2.100The Committee asked the ACCC about the process it undertakes when it receives a complaint. The ACCC explained:
We have a process by which we triage all complaints. Those complaints are assessed against our priorities and then applied to either—if it's in an area such as this, which is a priority, it would be applied to either a compliance or an enforcement perspective. There will be an investigation, most likely of the circumstances of the complaint, and it will then be put onto a track as appropriate. …
It's worth bearing in mind that we receive at least 100,000 complaints a year, so there has to be a triaging process. Currently, because surcharging is an important issue for us, we look into each and every complaint we think prima facie could potentially breach. Not all of them do. Often, we hear that people are upset that a surcharge is added to the purchase, and that's understandable; however, it doesn't necessarily disclose a breach.
2.101The Committee also asked the ACCC about the practice of blended pricing, whereby merchants—and their customers—are charged a flat rate for all card transactions, credit or debit, despite debit transactions being much cheaper to process. The ACCC explained that the practice is not illegal:
There is a complexity here in the current regulation because, under the law, the obligation not to charge higher than the costs sits with the merchant. It does not sit in the payment service providers who are giving that service to the merchant and to our receiving services themselves up the chain, either from banks or from schemes.
2.102The ACCC said it could not investigate consumer or small business complaints about being overcharged for debit transactions where the payment services provider offers only a blended pricing model:
…we can't, because there is not that obligation to only charge a cost-reflective price… That obligation currently does not apply to the payment service providers under the law. The current prohibition that was put in the law, by the previous government, that the ACCC enforces applies to the merchant and does not apply to other participants in the services chain. …
One of the reasons, in our submission, we wanted to draw attention to these questions is there's a possibility that, if there were to be a prohibition of charging any surcharge by a merchant for a debit transaction but not a credit transaction—say it only applied to a debit transaction—but that prohibition does not apply to other participants in the chain, small merchants particularly would be in a very precarious position because they would continue to be charged a blended rate fee.
2.103The ACCC advised that unless payment services providers were ‘misleading or deceptive’ (which it said had not been raised as a complaint to date) or their conduct had an anticompetitive element, the ACCC was not able to investigate payment providers with regard to the payment processing costs they pass on to merchants. Officials clarified:
Directly, the prohibition is on the merchant charging a price higher than their costs... If they are being charged a blended price or a single price by their payment service provider, then it may not be higher than their costs. I absolutely understand that…if you go up the chain, there will be fewer costs for a debit charged transaction because there aren't credit et cetera elements in the cost. But, so far as the merchant is concerned, that may actually be their cost.
2.104The ACCC confirmed its last enforcement action on the issue was in 2021, and explained that this was ‘in the context that most larger businesses are compliant’. It stressed the importance of proportionality in enforcement:
We are always looking to see our enforcement actions are proportionate to the size of business and proportionate to the impact, which is why we are framing this new program very specifically in a compliance and education framing for the very small and micro businesses.
2.105Officials elaborated:
…while we do receive complaints, many don't bear any contravention under the act or likely contravention. … We see non-disclosure issues, and often—to pick up the point about proportionality—we will write to or engage with the trader because they are usually small and unsophisticated. I think it's those observations that have led us to the view that a compliance and education first step is important so that businesses do understand what they need to do, not just with charging the correct surcharge but also in terms of disclosure and transparency.
2.106Officials observed that unlike other areas of the ACL, the issue of excess surcharging sat exclusively with the ACCC. They noted that although the ACCC welcomed recent Government funding, which would support the education and compliance campaign, a shift to a ‘multiregulator model’ in partnership with relevant state and territory government departments would also assist action on the issue.
Insurance
2.107The Committee also discussed the ACCC’s involvement in work to standardise definitions in insurance contracts—a problem explored in depth during the Committee’s review of insurers’ responses to 2022 major flood claims. The Committee and ACCC officials discussed trade-offs between product differentiation and consumer confusion:
This is one of the examples where I think the ACCC's interlinking responsibility for both promotion of competition and protection of consumers is very valuable. This is a question of allowing absolute differentiation, diversity and different responses to needs, but weighed up against confusion in, frankly, pretty complex areas. The difficulty then for consumers is for them to make decisions about what they're being offered, let alone to compare what they're being offered. We also quite clearly can see that if consumers can't make well-informed, reliable comparisons, we don't actually get the ability for competition to work on its merits…
2.108The Committee’s insurance inquiry had also considered affordability, and measures to improve this. The ACCC reported positive signs that the government-backed cyclone reinsurance pool was ‘beginning to deliver some premium relief for some consumers in some regions’, including indications that the potential for insurers to use the pool to motivate private risk mitigation had increased in one area.
2.109However, the ACCC warned ‘[i]t’s still early times... because the majority of the insurers have only just been in, in the past year’, and that premiums remained very high in northern Australia and were rising nationally. The ACCC also noted that international reinsurance markets were ‘hardening because of climate change’, increasing insurer costs.
2.110With insurance affordability an ongoing problem, the ACCC said ‘it is even more important that there is the benefit of standardised definitions to enable well-informed choice’, and noted that standardising definitions for key terms in insurance contracts had been one of the ACCC’s recommendations in its northern Australia insurance inquiry.
Consumers experiencing vulnerability
2.111The ACCC recognises that consumers experiencing vulnerability can be disproportionately impacted by conduct in breach of the ACL, such as ‘unconscionable conduct’. Although there is no precise legal definition of unconscionable conduct, the ACCC refers to it as ‘behaviour so harsh that it goes against good conscience’. Under the ACL, businesses must not act unconscionably towards consumers or other businesses.
2.112The ACCC noted in 2022 that it had taken action in relation to payment arrangements involving unconscionable conduct, such as where Telstra staff signed up 108 Indigenous consumers to multiple post-paid mobile contracts which they did not understand and could not afford:
…we were concerned about supply of telecommunications services in Indigenous communities at levels that people were unlikely to be able to afford, and people were then subject to continuing requirements to pay. We took action. There has been a very strong and effective mediation program by Telstra, and we obtained $50 million penalties.
2.113The ACCC also noted involvement in examining issues relating to Centrepay, a voluntary bill paying service free for those receiving Centrelink payments:
…I can refer to an analogous issue that we are dealing with or involved in, and that's the use of Centrepay by businesses to…pressure Indigenous consumers into buying goods that they may not need… In the case before us at the moment, we're working with WA Consumer Protection and also with ASIC and NT Consumer Affairs to see what action, if any, is necessary in this particular instance.
2.114The Committee also enquired about the ACCC’s consumer protection role in relation to ‘buy now, pay later’ arrangements. The ACCC acknowledged the concern for consumers experiencing vulnerability, but noted that questions on ‘buy now, pay later’ arrangements were a matter for ASIC.
Other issues
2.115The Committee also had questions about the ACCC’s data capabilities, performance measures and upcoming priorities.
2.116The Committee asked the ACCC to reflect on the role of data in supporting its work, such as when conducting merger investigations and market studies. The Committee also enquired about the Commission’s data capability. The ACCC told the Committee it has heavily invested in data and IT capability over the preceding two to three years, allowing the ACCC to examine anticompetitive conduct in a more strategic way:
We've built data scientist capability that assists and is deployed from merger investigation to market studies to competition or consumer investigations…From an IT perspective, we now have a range of tools that our people use…we do feel that we're certainly catching up and closing the gap on some of the private sector participants we engage with on data capability, in many cases overtaking them.
2.117The ACCC also noted that it was seeking to learn from other competition agencies globally, such as the United Kingdom’s Competition and Markets Authority, in relation to the utilisation of data in performing its role and responsibilities. The ACCC further shared:
…we have been very focused on the importance of improving our capability in this area and the way in which we are using data analysis… [W]e are seeking to also be in contact with a small group but a growing group of competition agencies worldwide who are realising that… we must attempt to keep pace with the way in which the corporate sector is using data or we will be unable to properly discharge our mandate and our responsibilities.
2.118The ACCC said it would endorse any further supplements to its data-gathering powers, informing the Committee that the data it requires is ‘sometimes difficult to obtain’.
2.119At the February 2025 hearing, the Committee also asked the ACCC about its key performance indicators, in particular the result in 2023–24 that only 46 per cent of draft determinations were released within four months, against a target of approximately 80percent (and in contrast to 71percent in 2022–23 and 95percent in 2021–22). The Committee asked the ACCC about progress towards its target service levels, particularly the timeliness of determinations and responsiveness to businesses.
2.120The ACCC noted that it had strict timeframes under new merger and acquisitions reforms, and that it took seriously its target of concluding 80percent of cases ‘within the 15 to 20 business days from being lodged, which is the shortest timeframe we're able to do it under the legislative framework.’ However, officials also noted that some matters were unavoidably too complex to be concluded in that timeframe:
When we look more broadly at determinations in conduct matters—for instance, parties coming together who are otherwise competitors but want to agree to work together—we do take into account, always, where matters are urgent, and we have given interim authorisations where there are urgent requirements. We look at it carefully. We are very conscious, with those matters, that we are exempting participants from the act when they're engaging in conduct which otherwise would be prohibited.
If we do not get information sufficiently promptly, it can take more time. Third parties have the capacity, where we are exercising that jurisdiction, to put submissions on as to whether or not, so there are other factors that are important and, in some ways, outside our control because we know we must be fully informed. That is an important aspect. If we look, for instance, at enforcement matters, we need to be very careful to investigate fully. Frequently, parties take a lot of time and are not necessarily cooperative with an investigation. Because we are making important decisions on what mode of intervention to take, to protect information or consumers we need to take the time to do them properly.
2.121ACCC officials also advised that the year in question ‘was a particular year where we had a lot of controversial conduct authorisations’ and that third parties could raise issues ‘quite late’, necessitating a delay in the draft decision.
2.122The ACCC also advised that it was creating an ‘ACCC performance consultative committee’ with representation by small businesses, consumer groups, large businesses, academics and advisors:
The topic expressly is to look at our performance and for us to raise aspects where we are looking for feedback and also for the participants to give us feedback. So we're moving to a face-to-face process for that. We have had a survey biannually, but we're now going to move to that. And we have appointed an independent chair. I am not chairing it. We're having an independent chair in order to ensure that the participants have confidence that they can raise what they want to raise. That is another aspect of how we are looking at moving outside our bubble and really receiving and taking into account the feedback we get.
2.123The ACCC concluded the February 2025 hearing with an outline of its key priorities for enhancing competition in Australia looking forwards. It noted that merger and acquisitions reform was ‘incredibly significant’, but that the next most important area to target would be digital platforms reform:
…in the context of so many of the transactions across our economy now occurring digitally, including mobile payment through a platform's own payment processes, but, in addition, where it is almost inevitable that Australian businesses are using online advertising in conjunction with social media services to identify customers, to make connections and then to transact.
2.124The ACCC outlined the reasoning behind its proposed approach to digital platforms regulation, given the global reach of the multinational companies that dominate the industry:
One of the reasons we had proposed the designation-specific code and service model is the ability for Australia to learn from and put in place regulation that's coherent with other jurisdictions like the UK, Europe, India and Brazil—a number are moving—so that we gain scale, in a regulatory intervention sense, with other jurisdictions. It means that Australia is not doing this alone. It's a medium-sized economy in the world—the 13th. So we're a significant economy, but we're talking about very large global companies. We very carefully thought about the framing of that recommendation so that we could be flexible and adapt and apply a model that is consistent with overseas models in the areas which are important for the Australian economy and that is modified to reflect that. But we are not, in effect, expecting a very large global business with global technological and commercial infrastructure to say, 'This is a modification that this market just doesn't warrant, from our perspective.' We do a lot of work with other agencies globally to understand what they're doing and what they're working on, and we think this is a path for the best success to have a regulatory framework that is coherent in engagement with the platforms but, in addition, has real prospects of actually changing behaviour and being able to be enforced.
2.125The ACCC identified ‘unfair trading practices’ between large and small businesses as its next priority, followed by monopoly pricing.
2.126As well as the topics discussed throughout this report, the Committee also enquired about other areas of the ACCC’s work, including petrol price cycles, cartel conduct exemptions, the impacts of privatisation and the Australian Securities Exchange’s move to a new clearing and settlement platform.
Committee comment
2.127The Committee acknowledges the ACCC’s critical role in promoting competition, improving consumer welfare and stopping conduct that is anti-competitive or harmful to consumers. The breadth of issues discussed at the public hearings, from fuel taxation and mergers to consumer data privacy and supermarket pricing, is testament to the Commission’s dynamic capability and the range of areas of the economy in which it operates.
2.128The Committee notes the ACCC’s advocacy on a variety of issues on which the Government has recently implemented reforms—notably, increased funding for scam disruption, including the establishment of the National Anti-Scam Centre, increased penalties for businesses using unfair contract terms, and national merger law reform. The Committee looks forward to examining the impact of these reforms at future meetings with the ACCC.
2.129The Committee notes the recent Government reforms to Australia’s mergers and acquisitions regime. With the move towards compulsory notification, the Committee will be closely scrutinising the ACCC’s success at keeping timeframes within target for the majority of applications, and its implementation of a risk-proportionate approach to others, to minimise red tape while protecting competition outcomes. The Committee will also be interested in the findings of the two reviews planned to assess the performance of the new regime, particularly the first-year review into the appropriateness of thresholds. The Committee will also be interested in the availability of the additional data to be collected under the new regime to inform broader policy analysis and development.
2.130In the context of the cost-of-living challenge of recent years, the Committee commends the ACCC’s important work in helping consumers access competitive petrol prices, and its role protecting vulnerable consumers from entering unconscionable payment arrangements.
2.131The Committee also commends the ACCC’s successes holding companies to account for misleading Australian consumers about the collection and use of their personal data, including Google, which was ordered to pay $60 million in penalties. Such legal action sends a strong deterrent message to companies to comply with consumer law. The Committee also commends the ACCC’s efforts in relation to monitoring the protection of consumers’ privacy following the Optus data breach and the ensuing changes to the Telecommunications Regulations 2021.
2.132The Committee notes the ACCC’s work determining the prevalence of corporate greenwashing in Australia, and helping consumers identify when greenwashing is taking place. In the interests of incentivising an orderly transition to Net Zero, it is paramount that businesses who have made a genuine investment in their sustainability can reap the resulting competitive advantage from those consumers who wish to switch to sustainable products or services. The Committee will continue to follow the ACCC’s approach to promoting and maintaining competition, while at the same time, enabling greater industry collaboration where necessary in progressing towards Net Zero.
2.133The Committee particularly commends the ACCC’s important work—both on its own initiative and at the behest of the Government—to hold the major supermarkets to account on pricing promises, and to investigate competition issues in the sector more broadly. Australian consumers have confronted significantly elevated grocery bills over the past several years, while farmers and other small suppliers have also reported being squeezed by the supermarket duopoly. Both consumers and small suppliers deserve to have their concerns about possible misuse of market power by Coles and Woolworths taken seriously, and the ACCC is the most important regulator in this space.
2.134The Committee notes that the Government recently made the Food and Grocery Code of Conduct mandatory, and that the new mandatory code will come into force in April 2025, with an anonymous supplier and whistle‑blower complaints pathway through the ACCC. The Committee will be interested to hear further updates on the implementation and impact of these changes.
2.135The Committee continues to be concerned about the transparency and fairness of card payment surcharging practices in Australia, including the practice of blended payment surcharges (regardless of card type and the underlying cost of processing a transaction). The Committee notes that the ACCC has received Government funding to take action on surcharging issues, and the ACCC’s advice that it is embarking on an education and compliance campaign with smaller merchants to raise awareness of their disclosure obligations to consumers. The Committee will be interested to hear how this work progresses, and the impact it may have.
2.136The Committee also acknowledges the ACCC’s advice that regulatory reform is necessary to improve regulators’ ability to address well-known competition and transparency issues in surcharging practices and to modernise payment system regulation—particularly with respect to payment services providers. The Committee notes that the RBA is currently engaged in important consultations on potential reforms. The Committee also notes that the Government has introduced legislation to respond to issues with surcharging and the payments system, but some of these reforms are yet to be passed by the Parliament. The Committee encourages the RBA, ACCC and Treasury to continue working closely to understand and address the known issues with card surcharging, and looks forward to further updates on this work.
2.137Competitive markets are critical to the welfare and prosperity of Australians. With levels of market concentration and slowed productivity being sources of widespread concern, the Committee will continue to monitor and scrutinise the ACCC’s performance, as well as considering whether the Commission has appropriate powers to perform its roles and responsibilities effectively.
Dr Daniel Mulino MP
Chair
26 March 2025