Perceptions Survey

Overall the market research findings reflect a strong awareness of the ACCC and positive perception of the agency generally. This is consistent with the previous study in 2018.

The key findings are as follows:

• ACCC brand awareness remains strong, with 84 per cent of Australian consumers aware of the ACCC.
• More than half of all consumers (54 per cent) think the ACCC is doing a good or very good job—an increase from 43 per cent in 2017 and 2018.
• Among the minority dissatisfied with the ACCC’s performance, there is a desire for more action against big businesses and a more competitive petrol market.
• There was an increase in the number of consumers using social media to access news.
• Facebook was the second most common channel for news access behind free-to-air TV, overtaking hard-copy and online newspapers.
• As a source of news for consumers, free-to-air TV is at 47 per cent, down from 61 per cent in 2018; hard-copy newspapers are at 16 per cent, down from 25 per cent in 2018; and online newspapers are also at 16 per cent, down from 25 per cent in 2018.
• For small businesses, 52 per cent of business operators are happy with the ACCC’s performance.
• Of the small business operators who recalled a specific issue related to the ACCC, one in five mentioned the banking industry.

ACCC Effectiveness Survey

As noted at ACCC Effectiveness Survey, the ACCC’s Effectiveness Survey will be conducted every three years. ORIMA Research’s report on its April 2019 study of stakeholder views of the ACCC’s effectiveness concluded that ‘the assessment feedback shows that the ACCC is achieving its purpose of making markets work for consumers, now and in the future. External stakeholder perceptions of its operations are also generally strong’. The full report is published on our website.

The 35 stakeholders that participated in the research reflected a broad cross-section of the ACCC’s key stakeholder groups.

Stakeholders were asked to rate to what extent they agreed with statements related to particular aspects of the ACCC’s effectiveness using a five-point scale ranging from ‘strongly agree’ to ‘strongly disagree’. For example, 97 per cent of respondents either agreed or strongly agreed that consumers are better off, and that markets are more competitive, due to the ACCC’s work.

The results were transformed into a 0–100-point scale index. The higher the index score, the more positive respondents’ perceptions of the ACCC’s performance.¹

ORIMA Research also constructed composite index² scores for each strategy in the ACCC’s Corporate Plan, as well as for the ACCC’s engagement with stakeholders and achieving the ACCC’s four core values.

Key index score results are shown in Table 3.3: ACCC 2018–19 Effectiveness Survey key results.

The ACCC was rated highly on the five measures directly related to achieving our overall purpose—particularly the first three measures, for which we achieved index scores above 80. Stakeholders also rated the ACCC favourably on achieving our four strategies, with an index score above 70 for all.

Regulator Performance Framework

In December 2019 the ACCC published its fourth annual self-assessment under the Australian Government’s Regulator Performance Framework. The ACCC self-assessment report 2018–19 is available on our website.

The framework requires regulators to assess their performance against the following six KPIs:

1. Regulators do not unnecessarily impede the efficient operation of regulated entities.
2. Communication with regulated entities is clear, targeted and effective.
3. Actions undertaken by regulators are proportionate to the regulatory risk being managed.
4. Compliance and monitoring approaches are streamlined and coordinated.
5. Regulators are open and transparent in their dealings with regulated entities.
6. Regulators actively contribute to the continuous improvement of regulatory frameworks.

These KPIs are concerned with how regulators administer regulation. The framework’s purpose is to encourage regulators to undertake their functions with the minimum burden necessary to achieve regulatory objectives. It does not seek to measure the performance of the ACCC in achieving outcomes for Australian consumers and the economy.

In recognition of the breadth of functions performed by the ACCC and the broad range of stakeholders with which the ACCC engages, the self-assessment is broken down by function area. This approach provides a comprehensive picture of the ACCC’s performance across each of its major functions. Performance is rated using a five-point scale that ranges from ‘very poor’ to ‘very good’.

A key element of the ACCC’s self-assessment was an online survey to obtain the views of business stakeholders. The survey was conducted independently by market research firm ENGINE in April 2019. Nearly 300 businesses, or their legal representatives, provided feedback on what the ACCC is doing well and what we can improve. We published the results of the survey in conjunction with the ACCC’s self-assessment on our website.

The self-assessment also relied on a wide range of other evidence, such as quantitative performance data and descriptive information that provides stakeholders with a greater appreciation of the systems and processes the ACCC has in place to support our engagement with businesses.

The self-assessment is externally reviewed and validated by the ACCC Performance Consultative Committee (APCC). The APCC comprises 16 business, legal and consumer representatives who collectively cover the broad range of stakeholders that the ACCC engages with in undertaking its various functions.

The 2018–19 self-assessment found that, in general, substantially more of the ACCC’s business stakeholders agree than disagree that the ACCC is achieving each KPI across the core ACCC functions. Table 3.4: Regulator Performance Framework self-assessment ratings 2018-19 shows the individual rating for each KPI across each of the ACCC’s functions.

Rating by the Global Competition Review

The GCR, the world’s leading antitrust and competition law journal and news service, undertakes an annual survey of the world’s leading competition authorities. In its publication Rating enforcement 2019 it awarded the ACCC four and a half stars out of five— an improvement on the four stars awarded in the previous year—and noted that our performance for 2018 was an improvement on our previous accomplishments. This puts the ACCC in the
top 10 agencies worldwide.

To determine star ratings, the GCR’s editorial team measures competition enforcement programs around the world, combining data supplied by the agencies with its own reporting and the feedback of lawyers, economists and local journalists who interact with competition authorities. The GCR looks at how well agencies prioritise the use of limited resources and how effective they are within the scope of their powers. In Rating enforcement 2019 the GCR explains:

We aim to measure and explain how each competition authority enforcer brought its legal powers, resources and influence to bear against anticompetitive activity. This is not merely an exercise in counting cases or fines—the most obvious indicators of enforcement and the ones sometimes touted by agencies themselves in justifying their budgets. We care about due process, independence, transparency and analytical sophistication in reviewing mergers and investigating conduct. Competition can also be promoted by means beyond enforcement actions, such as advocacy against regulations that entrench incumbents and impede new entrants.³

In reviewing the ACCC’s performance for 2018, the GCR noted the preliminary recommendations of the Digital Platforms Inquiry, the increase in numbers of misuse of market power cases, and higher cartel penalties. The GCR assessment reflects both the praise of the ACCC from Australian practitioners and the shortcomings identified by practitioners. For example, while it recognises the ACCC’s strong stance on cartel behaviour, ambitious recommendations and ‘media savvy’ in making our voice heard on all issues, it also notes our unsuccessful court challenges of mergers. However, the GCR acknowledges observations that the ACCC recognises that it will lose some cases and is not deterred by that fact. Noting that most of the feedback is positive, the GCR concludes:

With a dedicated financial services team, a sharp focus on the substantial lessening of competition standard and the power to conduct far-reaching market studies, the ACCC will likely remain one of the most active enforcers in the world for the foreseeable future.⁴

Strategy 1: Maintaining and promoting competition

Competitive markets lead to lower prices, better quality products and services and other innovations, greater efficiency and more choice, all of which benefit consumers.

As Australia’s national competition regulator, the ACCC works to enhance the welfare of Australians by maintaining and promoting competition and addressing market failures.

We do this by enforcing Part IV of the Competition and Consumer Act 2010 (Cth) (CCA), which prohibits:

• cartels and other anti-competitive agreements
• concerted practices that substantially lessen competition
• misuse of market power
• exclusive dealing and resale price maintenance
• mergers that substantially lessen competition.

We also do this through the Consumer Data Right (CDR) provisions of Part IVD of the CCA. The Consumer Data Right aims to create more choice and competition by:

• allowing consumers to request businesses to disclose the consumer’s own data to an accredited person who can use that data to provide services to the consumer
• requiring businesses to make product information easily accessible to any person.

The Consumer Data Right currently applies to banking data and products. It will be extended to energy data and products and other sectors in the future.

Our reporting on this strategy is in four sections:

• our competition enforcement function at Enforcement action to promote competitive markets
• our merger and authorisation review function at Merger and authorisation review
• our work on the Consumer Data Right
• other work we do to promote competition at Other work promoting competition.

Role and functions

The ACCC investigates and takes compliance and enforcement action in relation to suspected breaches of the competition provisions in Part IV of the CCA.

We encourage compliance with the law by educating and informing consumers and businesses about their rights and responsibilities under the CCA. We work with other agencies to implement these strategies, including through coordinated approaches.

Our deliverable for the competition enforcement function under strategy 1 is:

Priorities

With the finite resources available to us, we prioritise our actions to address conduct that does the greatest harm to competition.

Our annually revised Compliance and Enforcement Policy sets out competition and consumer priorities for the year and the factors we take into account when deciding whether to pursue particular matters.

We revised and released our Compliance and Enforcement Policy in February 2019 and again in February 2020. In relation to competition priorities, our 2019 and 2020 policies focused on the following areas in the reporting period:

• issues in the financial services sector, including issues with respect to foreign exchange services
• issues in the funeral services sector
• issues arising from the pricing and selling of essential services, with a focus on energy and telecommunications
• issues relating to digital platforms
• issues arising from customer loyalty schemes
• issues in the agriculture sector
• issues in the commercial construction sector
• cartel conduct (enduring priority)
• anti-competitive agreements and practices (enduring priority)
• misuse of market power (enduring priority).

We focus on these areas because of their potential for significant harm to consumer welfare and competition.

Powers

We have the power to take court action, refer alleged serious cartel conduct to the Commonwealth Director of Public Prosecutions (CDPP), accept court enforceable undertakings, resolve matters administratively and prevent breaches though education and advice. A description of these powers and our approach to using them is in Appendix 7: Competition and Consumer Act 2010 and other legislation.

This deliverable is about the court or other actions we take to deliver outcomes that help to maintain or promote competition.

Analysis of performance

We achieved six new competition enforcement interventions in 2019–20 (against a target of six). These were:

• instituting proceedings against BlueScope Steel Limited for alleged cartel conduct in relation to the supply of flat steel products (see Cartels)
• the CDPP laying criminal cartel charges against Norway-based global shipping company Wallenius Wilhelmsen Ocean AS for alleged cartel conduct concerning the international shipping of certain vehicles to Australia (see Cartels)
• instituting proceedings against Tasmanian Ports Corporation Pty Ltd (TasPorts) for allegedly seeking to stop a new entrant from competing effectively with TasPorts’ marine pilotage and towage businesses. This is the first case the ACCC has brought under the amended misuse of market power provision (see Misuse of market power)
• court enforceable undertakings from two Sydney roofing contractors who acknowledged that their conduct was likely to constitute an attempt to fix prices and may have raised concerns under the new concerted practices prohibition (see Anti-competitive agreements and practices)
• a court enforceable undertaking from Bromic Pty Ltd, a national distributor of outdoor heating products, which admitted to engaging in resale price maintenance when it introduced a ‘minimum advertised pricing’ policy.

All competition enforcement interventions were within the priority areas or demonstrated the priority factors as outlined in the Compliance and Enforcement Policy.

In August 2019 Japanese shipping company Kawasaki Kisen Kaisha Ltd (K-Line) was convicted of criminal cartel conduct. The Federal Court ordered K-Line to pay a fine of $34.5 million. K-Line pleaded guilty in August 2018 following an extensive investigation by the ACCC and the laying of charges by the CDPP. This is largest ever criminal fine imposed under the CCA to date.

The ACCC was unsuccessful in proceedings previously instituted against Ramsay Health Care Australia Pty Ltd and in our appeal against Cascade Coal Pty Ltd and others. While respecting the decisions of the courts in those matters, the ACCC remains committed to pursuing matters where we consider conduct has a detrimental effect on competition in an Australian market.

In 2019–20 the ACCC undertook four market studies with a significant focus on competition: the Murray–Darling Basin Water Markets Inquiry, Foreign Currency Conversion Services Inquiry, Home Loan Price Inquiry and Wine Grape Market Study. Further details on market studies are provided at Market studies and inquiries.

In 2019–20 a number of longstanding and continuing competition cases continued to require considerable ACCC resources. They include:

• proceedings in relation to an alleged banking cartel. The CDPP laid criminal cartel charges against Australia and New Zealand Banking Group Ltd (ANZ), Citigroup Global Markets Australia Pty Limited (Citigroup) and Deutsche Bank Aktiengesellschaft (Deutsche Bank) and several senior executives in June 2018. The charges involve alleged cartel arrangements relating to trading in ANZ shares held by Deutsche Bank and Citigroup. ANZ and each of the individuals are alleged to have been knowingly concerned in some or all of the alleged conduct
• proceedings against money transfer business Vina Money Transfer Pty Ltd and five individuals who were charged with criminal cartel conduct in April 2019 for allegedly fixing the Australian dollar/Vietnamese dong exchange rate and fees they charged their customers
• progressing criminal cartel charges against The Country Care Group Pty Ltd and two individuals who were charged in February 2018 for alleged cartel conduct involving assistive technology products used in rehabilitation and aged care
• progressing criminal cartel charges against the Construction, Forestry, Maritime, Mining and Energy Union and one individual charged in August 2018 with attempting to induce suppliers of steel-fixing and scaffolding services to agree to contracts, arrangements or understandings containing cartel provisions in relation to services provided to builders in the Australian Capital Territory
• proceedings against NSW Ports Operations Hold Co Pty Ltd and its subsidiaries for making agreements with the State of New South Wales that the ACCC alleges had an anti-competitive purpose and effect
• continuing to pursue PT Garuda Indonesia Ltd (Garuda) for payment of $19 million in penalties ordered by the Federal Court in May 2019. This followed an earlier finding that Garuda colluded on fees and surcharges for air freight services. The ACCC first took action against Garuda in September 2009.

Criminal and civil competition proceedings often raise particular challenges, including the provision and protection of the ACCC’s cartel immunity policy, evidentiary and investigatory requirements of criminal investigations, the appropriate use of overlapping parallel civil and criminal provisions, and navigating the Federal Court’s nascent criminal jurisdiction. The ACCC will continue to explore and develop new ways of meeting these challenges.

Further details of litigation commenced, concluded and continuing during the period are in Appendix 10: Litigation matters, review proceedings and tribunal proceedings in 2019–20.

Finally, in addition to investigations, other project and policy work was undertaken to promote competition as outlined at Other work promoting competition.

The ACCC completed 28 in-depth investigations in 2019–20—fewer than the annual target of 40. This reflected disruption, resourcing and operational challenges, primarily in response to the COVID-19 pandemic. We have been highly conscious of the impact of COVID-19 on consumers and businesses and have adjusted the focus of our regulatory activities accordingly. We acknowledge that most businesses are facing severe disruption and the future is uncertain for many. We have factored these circumstances into our consideration of competition matters in the short term to assist businesses to remain viable in the long term.

The ACCC has sought to minimise regulatory burden as far as possible. When we make decisions on the scope and timing of statutory notices for the production of information and documents during our investigations, we carefully consider the impact on businesses that are already under pressure. Where compulsory examinations are necessary, we are using online platforms to ensure that these can occur consistently with social distancing. As a result, anticipated timeframes for many of our continuing investigations have been extended.

Managing the impact of the COVID-19 pandemic will continue to be a challenge for our competition investigations. However, a competitive economy will be critical to the recovery and vital to Australia’s future. Therefore, as much as is possible, the ACCC will work to ensure that any changes to the competitive landscape arising from COVID-19 are temporary and that the ACCC is ready to play its role in supporting competition as the economy recovers.

In 2019–20 the ACCC was involved in 16 court proceedings relating to competition enforcement.

These proceedings relate to competition matters in a range of industries, including financial services, construction, shipping, ports and marine pilotage. A complete list of commenced, completed and continuing proceedings is in Appendix 10: Litigation matters, review proceedings and tribunal proceedings in 2019–20.

Of the competition enforcement proceedings:

• 12 cases were carried over from 2018–19
• four cases were commenced in 2019–20
• three cases were finalised in 2019–20
• 13 cases were continuing at the end of June 2020.

The ACCC will always prioritise enforcement action against cartel conduct causing detriment in Australia. Cartel behaviour involves businesses agreeing with their competitors to fix prices, rig bids, share markets or restrict supply or acquisition of products or services. By conspiring to control markets in these ways, a cartel protects and rewards its inefficient members while penalising honest, innovative and well-run companies.

The ACCC has extensive powers to investigate cartels. We can compel relevant individuals and companies to provide information or documents relating to suspected cartels and, under warrant, we can search company offices and the homes of company officers.

In 2019–20 our cartel investigations resulted in the following actions:

• The ACCC instituted civil proceedings in the Federal Court against BlueScope Steel Limited and its former general manager of sales and marketing Mr Jason Ellis for alleged cartel conduct in relation to the supply of flat steel products. The CDPP also laid two charges against Mr Ellis for inciting the obstruction of a Commonwealth official in the performance of their functions. These charges relate to actions Mr Ellis allegedly took during the ACCC’s investigation of BlueScope.
• The CDPP laid criminal cartel charges against Wallenius Wilhelmsen Ocean AS, a Norway-based global shipping company, for alleged cartel conduct concerning the international shipping of certain vehicles to Australia between June 2011 and July 2012. These charges follow an extensive investigation undertaken by the ACCC.
• Japanese shipping company Kawasaki Kisen Kaisha Limited (K-Line) was convicted of criminal cartel conduct by the Federal Court and ordered to pay a fine of $34.5 million. Following an extensive investigation by the ACCC and the laying of charges by the CDPP, K-Line pleaded guilty to engaging in cartel conduct with other shipping companies in order to fix prices for the transportation of cars, trucks and buses into Australia between 2009 and 2012.
• The ACCC’s appeal against a Federal Court judgment in relation to alleged bid rigging conduct involving Cascade Coal Pty Ltd, Paul and Moses Obeid and others was dismissed. The appeal focused on whether parties associated with the Obeid family members and Cascade were ‘in competition’ at the time they withdrew a bid for Mount Penny and Glendon Brook mining exploration licences. The Full Federal Court concluded there was no error of law on that issue.

Further details of ACCC litigation are in Appendix 10: Litigation matters, review proceedings and tribunal proceedings in 2019–20.

Companies and individuals, including cartel participants, help us to detect cartels. Under the ACCC immunity and cooperation policy for cartel conduct, participants can apply for immunity from civil and criminal prosecution by reporting their own involvement in a cartel.

On 1 October 2019 the ACCC launched an updated immunity policy with amendments that enhance transparency and clarify the scope of the policy. The updated immunity policy, and answers to frequently asked questions about the policy, are available on the ACCC website.

In July 2019 the ACCC launched an additional, completely anonymous, way for people to report cartel conduct. It allows whistleblowers to contact the ACCC via an online portal (’Whispli’). The portal encrypts the information a whistleblower gives and removes the person’s internet protocol (IP) address.

The portal gives whistleblowers control over their communications with ACCC investigators regarding their initial report. They can check for responses from the ACCC and provide further information while remaining anonymous. The portal is available on the Whispli platform.

We will report on the numbers of investigations generated by these contacts in future annual reports.

The CCA prohibits a rage of conduct and practices that have a requisite anti-competitive purpose, effect or likely effect of substantially lessening competition. The ACCC will always prioritise anti-competitive conduct and practices due to the potential detriment they cause.

In 2019–20 the ACCC accepted court enforceable undertakings from two Sydney roofing companies in which they acknowledge that discussions on social media about setting minimum rates for the repair of hail-damaged homes were likely to constitute an attempt to fix prices and in some circumstances could raise concerns under the new concerted practices prohibition. ANZ Roofing Pty Ltd and Ivy Contractors Pty Ltd, and their directors Mark Lee Burtenshaw and Brent Cameron Callan-Kerkenezov, have acknowledged the ACCC’s concerns about the messages, which appeared on two Facebook groups in December 2018. This was the first enforcement action utilising the concerted practices provisions.

Further details of ACCC litigation are in Appendix 10: Litigation matters, review proceedings and tribunal proceedings in 2019–20.

The misuse of market power remains a priority for the ACCC because of the potential detriment it causes. Since 6 November 2017 a contravention of the misuse of market power prohibition in the CCA occurs where a business with substantial power in a market engages in conduct that has the purpose, effect or likely effect of substantially lessening competition.

In 2019–20:

• the ACCC instituted proceedings against Tasmanian Ports Corporation Pty Ltd (TasPorts) under the amended misuse of market power provision. This is the first case the ACCC has brought under this provision. It is alleged that TasPorts, which owns all but one port in northern Tasmania, sought to stop a new entrant, Engage Marine Tasmania Pty Ltd, from competing effectively with TasPorts’ marine pilotage and towage businesses, with the purpose, effect and likely effect of substantially lessening competition
• the ACCC’s case against Ramsay Health Care Australia Pty Ltd (Ramsay) was dismissed by the Federal Court. The ACCC alleged that Ramsay misused its market power and engaged in exclusive dealing when senior Ramsay executives told a group of surgeons planning to establish a competing private day surgery facility in Coffs Harbour that their access to operating theatre times at Baringa Private Hospital would be substantially reduced or withdrawn if they proceeded with their plans.

Further details of ACCC litigation can be found in Appendix 10: Litigation matters, review proceedings and tribunal proceedings in 2019–20.

Merger and authorisation review

Review arrangements between businesses, including mergers and authorisations, to maintain competition and/or the public interest

Role and functions

To ensure that markets work well for consumers, the ACCC reviews mergers and acquisitions to determine whether they are likely to substantially lessen competition. Competition can be reduced when one firm buys another firm or its assets, potentially resulting in fewer competitors; increased prices; lower product quality; or less service, choice or innovation for consumers.

However, many mergers and acquisitions do not raise competition issues. Section 50 of the CCA only prohibits those that are likely to substantially lessen competition in any market in Australia.

Merger parties can seek ‘informal’ clearance from the ACCC, and we will provide our view on whether an acquisition is likely to substantially lessen competition. The ACCC provides an early clearance for matters when it determines that they do not require a detailed review because there is a low risk of the merger substantially lessening competition. This is known as pre-assessment. Acquisitions that are in the public domain and that the ACCC has determined cannot be pre-assessed undergo a public merger review.

The merger authorisation process provides an alternative clearance option to the informal merger review process. In November 2017 amendments to the CCA restored the ACCC’s role as first-instance decision-maker for merger authorisations and changed the legal test for authorising proposed acquisitions.

The amended merger authorisation test enables the ACCC to grant authorisation if we can be satisfied that the proposed acquisition would not be likely to substantially lessen competition or, alternatively, the likely public benefit from the proposed acquisition outweighs the likely public detriment. The ACCC has received and determined two applications for merger authorisation since the revisions to the CCA came into effect in 2017.

Before the amendments to the CCA, merger parties could seek legal protection from court action under s. 50 of the CCA by applying to the Australian Competition Tribunal for authorisation of the merger proposal. The test applied by the Tribunal was a net public benefit test, meaning there was no express provision to grant authorisation solely on the basis that a merger was not likely to substantially lessen competition.

The (non-merger) authorisation, notification and class exemption functions provide three different means by which the ACCC can allow or exempt certain non-merger conduct that might otherwise breach competition law. These functions help competition law to work more effectively in the interests of the community. They provide a degree of flexibility so that, after appropriate scrutiny and analysis, the ACCC can allow arrangements that might otherwise be prohibited by competition law if they will benefit the public or are not likely to substantially lessen competition.

Upon application, the ACCC’s decisions to grant or dismiss merger authorisation and non-merger authorisation applications may be reviewed by the Tribunal. We have a role in assisting the Tribunal in its review of these decisions.

We also assess the rules for certification trade marks to determine whether they may be to the detriment of consumers and competition.

Our deliverables for the merger and authorisation review function under strategy 1 are:

Priorities

Our priority is to assess and review mergers and acquisitions to prevent structural changes that substantially lessen competition in any market. Our particular focus is on concentrated markets and proposed acquisitions arising through privatisation of public sector assets.

Mergers are usually brought to our attention by merger parties that request informal clearance or authorisation (in the latter case assessing net public benefits to be considered in addition to considering competition effects). Alternatively, we may become aware of a merger proposal through the media, from complaints or by referral from other regulatory bodies.

Our task in assessing and making decisions about applications for authorisation and notifications is to evaluate whether the arrangement or conduct is likely to result in a net public benefit. In assessing certification trade marks, our focus is on ensuring that the trade mark and associated rules do not harm competition or mislead consumers.

Our ability to make class exemptions does not depend upon an application and does not involve case-by-case assessment of a particular proposal. Rather, our priority in deciding whether to make a class exemption is to reduce or remove regulatory burden where a class of conduct is likely to result in a public benefit or unlikely to substantially lessen competition.

Powers

Section 50 of the CCA prohibits mergers and acquisitions that substantially lessen competition in any market in Australia or are likely to do so.

There is no process set out in the legislation for the informal clearance regime: this process has developed over time so that merger parties can seek the ACCC’s view before they complete a merger. Appendix 7: Competition and Consumer Act 2010 and other legislation has more details on informal clearance and pre-assessments.

As part of our role to review mergers and acquisitions under s. 50 of the CCA, we have the power to bring court proceedings where we consider that an acquisition is likely to breach s. 50. We are also able to accept court enforceable undertakings offered by merger parties to address or ‘remedy’ competition concerns that an acquisition raises.

In response to an application for merger authorisation, Part VII of the CCA gives the ACCC the power to grant an authorisation that exempts the applicant from s. 50.

Part VII also gives the ACCC the power to make a class exemption, grant authorisation or allow notifications involving non-merger conduct that may otherwise risk breaching the competition provisions of the CCA but are not likely to substantially lessen competition and/or are likely to be in the overall public interest. An outline of our authorisation function is in Appendix 7: Competition and Consumer Act 2010 and other legislation.

Additionally, under the Trade Marks Act 1995 (Cth) the ACCC is responsible for assessing the rules for certification trade marks. The ACCC’s assessment includes determining whether the certification trade mark rules are not to the detriment of the public and are satisfactory having regard to the principles of competition and consumer protection.

This deliverable is about assessing proposed or completed mergers and acquisitions to determine whether they are likely to substantially lessen competition.

These performance indicators are from the ACCC and AER Corporate Plan 2019–20. Additional performance indicators (those without a target) provide additional transparency on the volume of our work and on our timeliness.

This deliverable is about assessing and making timely decisions on applications for authorisation, on notifications of exclusive dealing or collective bargaining, and on certification trade marks to maintain competition and the public interest.

These performance indicators are from the ACCC and AER Corporate Plan 2019–20. Additional performance indicators (those without a target) provide additional transparency on the volume of our work and on our timeliness.

Analysis of performance

The informal clearance process allows merger parties to seek the ACCC’s views on a merger before they proceed with it. By doing this they can manage the risk of regulatory intervention at a later time. In 2019–20 we assessed 288 mergers that were submitted to the ACCC under the informal clearance regime or identified through monitoring and intelligence gathering.

We aim to deal with non-contentious mergers expeditiously. Consistent with this, we determined that 89 per cent of transactions did not require a detailed review because of the low risk that competition concerns will be raised. This exceeded our target of 80 per cent. The vast majority of these assessments were completed within four weeks, excluding time taken for merger parties to respond to information requests.

The remaining 11 per cent of mergers that underwent a public review were the more contentious and potentially more complex matters. A number of these involved mergers in concentrated markets where the competition concerns were likely to be greater, and these were also transactions which the public expects the ACCC to scrutinise closely.

Significant decisions made by the ACCC on transactions following a public review included:

• Bunnings Group Limited—proposed acquisition of Adelaide Tools and Oaklands Mower Centre
• Asahi Group Holdings—proposed acquisition of Carlton & United Breweries (owned by Anheuser Busch InBev SA/NV)
• Global Forest Partners LP—proposed acquisition of Resource Management Service LLC’s Tasmanian hardwood plantations
• Emergent Cold—proposed acquisition of AB Oxford Cold Storage Company
• Saputo Dairy Australia Pty Ltd—proposed acquisition of Lion Dairy and Drinks Pty Ltd’s cheese business
• ANZ Terminals Pty Ltd—proposed acquisition of GrainCorp Liquid Terminals Australia Pty Ltd
• Landmark—proposed acquisition of Ruralco Limited
• Bauer Media Pty Ltd—proposed acquisition of Pacific Magazines Pty Ltd.

In some cases the parties will decide not to proceed with the transaction after the ACCC releases a statement of issues outlining competition concerns. The following transactions were withdrawn by the merger parties at this point:

• iNova Pharmaceuticals (Australia) Pty Ltd—proposed acquisition of Juno PC Holdings Pty Ltd
• Cengage Learning and McGraw-Hill Education—proposed merger
• Bis Industries Holdings Limited—proposed acquisition of Cougar Mining Group
• Assa Abloy Australia Pacific Pty Ltd—proposed acquisitions of Seal Doors Group and E Plus Building Products Pty Ltd
• New Forests Asset Management managed forestry investment fund—proposed acquisition of Resource Management Service LLC’s Tasmanian hardwood plantations.

While the ACCC endeavours to complete merger reviews as quickly as possible, the focus is on getting the right decision. The ACCC has signalled that it will use its compulsory information-gathering powers more in merger investigations where its concerns warrant increased evidence gathering to reach a decision and, for some matters, prepare for possible litigation. We exercised these powers in 15 reviews this year.

The ACCC exceeded its target of completing 50 per cent of Phase 1 reviews within eight weeks. However, it was not able to achieve its target of reviewing 90 per cent of Phase 2 public merger investigations within 20 weeks (although four of these exceeded the target by fewer than 10 days). This reflects the increased complexity of Phase 2 public reviews and the need to use compulsory information-gathering powers in these contentious matters.

We consulted on all authorisation applications, published applications and submissions on our public register and actively contacted market participants to allow applicants and interested parties to have their say. Significant authorisation decisions included:

• a series of interim authorisations relating to the impacts of COVID-19 disruption
• authorisation for the New Energy Tech Consumer Code
• authorisation for the Australian Banking Association’s Banking Code
• authorisation for the Mortgage and Finance Association of Australia’s disciplinary rules.

All publicly reviewed merger decisions for 2019–20 are published on the ACCC’s mergers public registers. All notifications and applications for authorisation are published on the ACCC’s authorisations and notifications registers.

During the emerging COVID-19 pandemic, the ACCC implemented additional measures to ensure that it continued to meet its objective of protecting competition in these extraordinary circumstances. The most significant of these was to prioritise consideration of the large number of authorisation applications from firms seeking immunity from competition laws to coordinate their responses to COVID-19. These applications included requests for urgent interim authorisation, which needed to be dealt with expeditiously. The ACCC granted interim authorisation within days in most cases. Significant resources were diverted from within the agency to undertake the substantive reviews of these authorisation applications over the following months.

To assist transparency we also published guidance for firms and their advisors on potential changes to the ACCC’s timing and processes for assessing merger clearance requests and applications for merger authorisation and non-merger authorisation as a result of the pandemic.

In reviewing mergers, the ACCC aims to work efficiently, transparently and effectively, taking account of the commercial needs of the parties involved. We take a scaled approach to merger assessments whereby merger proposals are triaged to ensure that non-contentious mergers are dealt with expeditiously and information required from merger or other parties is tailored according to the complexity of the issues raised.

The ACCC also seeks to inform the public, businesses and their advisors about the merger review process. We publish indicative timelines for assessments of proposed mergers under public consideration on our online mergers register unless the merger is cleared after an initial assessment (that is, pre-assessed) or subject to a confidential review. Our approach to informal merger reviews is outlined in Appendix 7: Competition and Consumer Act 2010 and other legislation.

When the ACCC reaches a preliminary view that a merger raises competition concerns requiring further investigation, it releases a ‘statement of issues’. A statement of issues provides our preliminary views, drawing attention to particular issues of varying degrees of competition concern and identifying the lines of further inquiry that we wish to take. The purpose of the statement of issues is to provide guidance to the merger parties and other interested parties and to invite further information that may either alleviate or reinforce our concerns.

After public consultation on a statement of issues, our concerns may be validated. Where competition concerns remain, we may consider any undertakings put by the merger parties to us to resolve them.

After we make a decision on a merger, we may publish a public competition assessment. A public competition assessment gives a detailed summary of the issues that we considered when deciding whether a merger would substantially lessen competition or would be likely to do so.

We use public competition assessments to help the public to understand our analysis of the competition issues involved in certain merger reviews. We generally publish a public competition assessment on our online mergers register when:

• we oppose a merger
• a merger is subject to enforceable undertakings
• a merger is cleared but raises important issues that we believe should be made public.

Public competition assessments are published on the ACCC’s public competition assessments page.

The ACCC can accept court enforceable undertakings under s. 87B of the CCA to resolve competition concerns raised by an acquisition.

We considered 288 matters under s. 50 of the CCA in 2019–20—a decrease of 13 per cent on the 331 matters in 2018–19. Of the 288 mergers considered:

• 257 mergers were assessed as not requiring a public or confidential review (pre-assessed)—compared with 305 pre-assessments in 2018–19
• 31 mergers were subject to a public review—compared with 25 public reviews in 2018–19.

Of the 31 public reviews that were conducted in 2019–20:

• we opposed one merger outright
• we accepted court enforceable undertakings in relation to four mergers to address competition concerns, resulting in these mergers being cleared subject to an undertaking
• eight reviews were discontinued because either the transactions did not proceed or the parties withdrew their request for clearance. In five of these matters our reviews were discontinued because the parties did not continue with the transaction after we released a statement of issues identifying issues of concern or issues that may raise concerns
• we did not oppose 18 other mergers that underwent a public informal review.

We unconditionally cleared 58 per cent of mergers that underwent a public review. This figure increases to 95 per cent when all mergers (including pre-assessments) are included. In 15 matters we used our formal information-gathering powers under s. 155.

Case study: Proposed acquisition of Juno PC Holdings Pty Ltd by iNova Pharmaceuticals (Australia) Pty Ltd
On 6 January 2020 the ACCC discontinued its public review of the proposed acquisition of Juno PC Holdings Pty Ltd (Juno PC) by iNova Pharmaceuticals (Australia) Pty Ltd (iNova). We discontinued the review after the parties notified us that they no longer intended to proceed with the acquisition.

The parties’ decision to abandon the deal came shortly after the ACCC published a statement of issues on 19 December 2019. In the statement of issues we raised preliminary concerns that the proposed acquisition would be likely to limit future competition in the market for phentermine-based weight-loss medications and weight-loss medications more broadly.

iNova supplied a branded and a generic version of phentermine-based weight-loss medication. iNova’s products Duromine and Metermine were the only Therapeutic Goods Administration approved phentermine products sold in Australia.

Juno PC was a special purpose joint venture established for the development of a patent-protected, branded weight-loss phentermine product. At the time of the assessment, Juno PC’s product was not yet approved for sale.

The ACCC’s preliminary concern was that the proposed acquisition would remove the opportunity for Juno PC’s new product to enter the market as a strong competitor to iNova. The acquisition of a potential future competitor can raise concerns in the same way that the acquisition of an existing competitor can. The ACCC considered that, if the acquisition did not take place, it was likely that another pharmaceutical company would acquire or partner with Juno PC and compete with iNova.

The ACCC’s public review examined the constraint provided by other weight-loss medications, including Saxenda—a prescription product supplied by Novo Nordisk—and over-the-counter products such as Xenical (supplied by Roche Australia). However, our preliminary view was that, if not for the proposed acquisition, Juno PC’s phentermine-based product would be likely to compete more vigorously with iNova’s phentermine-based product than these alternatives.

The ACCC also examined the likelihood of other generic phentermine-based weight-loss medications entering the market and competing with iNova. However, the ACCC’s preliminary view was that, even if such entry was to occur in the absence of the proposed acquisition, Juno PC’s product would be likely to provide an additional competitive constraint on iNova, due to the claimed advantageous features of Juno PC’s new patent-protected product, including a consistent slow-release profile.

Case study: Merger authorisation conditionally authorised with divestitures—AP Eagers Limited’s proposed acquisition of Automotive Holdings Group Limited
In July 2019 the ACCC conditionally authorised AP Eagers’s proposed acquisition of Automotive Holdings Group (AHG), following an undertaking from AP Eagers to sell its existing new car dealerships in the Newcastle and Hunter Valley region to a third party. AP Eagers’s application was the first merger authorisation application following reforms in 2017 to the merger authorisation process.

AP Eagers and AHG were the two largest automotive retailers in Australia. The combined AP Eagers and AHG dealership group would represent around 12 per cent of new vehicle sales in Australia. AP Eagers and AHG supplied new and used cars, trucks and buses, as well as associated products and services such as car repairs and servicing, authorised car parts, insurance and finance. Their operations overlapped in Brisbane, Melbourne, Sydney and the Newcastle and Hunter Valley region of New South Wales (which includes Cessnock, Maitland/Rutherford, Singleton and Port Stephens). AP Eagers was the largest shareholder of AHG, holding around 29 per cent of AHG’s listed securities in April 2019.

Concerns about the proposed acquisition were raised in the Newcastle and Hunter Valley region, where AHG was found to be AP Eagers’s closest competitor. The transaction would result in the combined AP Eagers and AHG owning about half of the 78 dealerships in the Newcastle and Hunter Valley region and about three-quarters of the dealerships that sell the top 10 car brands in metropolitan Newcastle.

The ACCC was not satisfied that the likely public benefits from the proposed acquisition outweighed the likely public detriment, including from a lessening of competition in the Newcastle and Hunter Valley region.

To address these concerns, AP Eagers offered a court enforceable undertaking to divest a number of its dealerships and related business sites in the Newcastle and Hunter Valley region.

In the other areas of overlap, the ACCC considered there would be enough alternative dealers to prevent a combined AP Eagers and AHG dealership group resulting in a substantial lessening of competition in those areas.

Having accepted the court enforceable undertaking from AP Eagers to address the competition concerns in the Newcastle and Hunter Valley region, the ACCC granted conditional authorisation on 25 July 2019. Authorisation is conditional on AP Eagers complying with the undertaking to divest.

The CCA primarily aims to prevent conduct that damages or is likely to damage competition. However, if markets are not working efficiently and are failing to maximise the welfare of Australians, some arrangements which may affect competition may be allowed in the public interest. Authorisation provides businesses with protection from legal action arising from potentially anti-competitive arrangements.

The ACCC can, upon application, grant an authorisation for conduct where the likely public benefit outweighs any likely public detriment. With the revisions to the CCA which came into effect on 6 November 2017, the ACCC may now also grant authorisation for certain forms of conduct if it is satisfied that no substantial lessening of competition is likely.

In assessing an authorisation application, the ACCC consults with the public (including contacting many businesses that may have an interest in the matter) and publishes submissions on a public register, unless they have been excluded because they are confidential or for other reasons.

After considering submissions, we issue a draft decision, which the applicant and interested parties can discuss with us in a conference. We then consider the application in light of any further submissions and release a final decision.

Managing the impacts of COVID-19 disruption via interim authorisation
From mid-March 2020 the ACCC granted numerous urgent interim authorisations to businesses in a number of sectors in response to the COVID-19 pandemic. We recognised that coordination and cooperation in the supply of medical services and equipment and other essential goods and services is important when supply chains and the economy are facing unprecedented disruption and that this can provide relief to affected businesses and consumers.

Five broad categories of proposed conduct emerged from these authorisation applications:

• Response to medical needs arising from treating patients—conduct to secure supply of COVID-19-related medicines and medical equipment.
• Hospital capacity management between governments and private providers— arrangements to allocate hospital capacity efficiently in the event of a surge of COVID-19 cases.
• Adjusting supply chains and market operation, especially to respond to economic and social disruption from adjusting to lockdown—broad sector responses to changes in business and consumer behaviour, particularly with more people working from home.
• Promoting consistent relief or benefits for economic issues and hardship—competitors agreeing on standard minimum relief to alleviate financial hardship caused by the economic fallout from the pandemic, or standard extensions of health-related coverage.
• Conduct responding to issues resulting from the medical, economic or social consequences of the COVID-19 pandemic—collaboration to promote efficient actions in response to the financial issues caused by COVID-19, such as collective bargaining by tenants with landlords.

The ACCC will closely monitor the activities being undertaken and may review a decision to grant interim authorisation at any time. In granting these interim authorisations urgently, the ACCC considered the current circumstances caused by the COVID-19 pandemic to be exceptional.

The ACCC’s final decision on whether to grant authorisation will follow a period of public consultation and depends on whether the public benefit from the conduct outweighs any public detriment. The ACCC expects that authorisations granted on the basis of the pandemic will be relatively short term, reflecting the temporary need to respond to the pandemic. The ACCC will be careful to avoid any long-term consequences for competition in the affected markets.

More information about these applications and the ACCC’s authorisation process can be found on the ACCC’s public register.

Case study: New Energy Tech Consumer Code
In April 2019 the Clean Energy Council, the Australian Energy Council, the Smart Energy Council and Energy Consumers Australia (together the applicants) sought authorisation for the New Energy Tech Consumer Code, which sets minimum standards of good practice and consumer protection that signatories must comply with. The code applies to all aspects of customers’ interactions with participating retailers, including marketing, sales, finance and payments, warranties and complaints handling processes. It covers retailers of products such as solar generation systems, energy storage systems, electrical vehicle charging and other emerging energy products and services, subject to conditions.

The ACCC received many submissions on this matter, particularly about requirements under the code relating to responsible finance and ‘buy now pay later’ (BNPL) finance arrangements. Based on the information received, on 5 December 2019 the ACCC granted conditional authorisation for the code until 31 December 2024. The final determination contained the following conditions:

• a condition relating to the consumer safeguards that the code requires BNPL finance providers to have in place in order for signatories to the code to offer BNPL finance arrangements from those providers
• a condition clarifying the intended effect of the code in relation to BNPL finance being offered in unsolicited sales of new energy tech products
• a condition requiring the applicants to report to the ACCC on the operation of the code. Reporting is intended to enable the applicants, as well as the ACCC, to assess whether the code is operating as envisioned, including whether there are sufficient protections against harms that may arise from unsuitable financial arrangements.

The applicants must report to the ACCC on the operation of the code. Reporting is intended to enable the applicants, as well as the ACCC, to assess whether the code is operating as envisioned, including whether there are sufficient protections against harms that may arise from unsuitable financial arrangements.

On 30 December 2019 Flexigroup (an interested party in this authorisation) lodged an application for review of the ACCC’s determination with the Australian Competition Tribunal, so the ACCC determination did not come into force. As at 30 June, the application has been heard by the Australian Competition Tribunal and the Tribunal’s decision is pending.

Notification is an alternative to authorisation for certain arrangements such as exclusive dealing. Like authorisation, the notification process provides protection from legal action under the CCA if the conduct is in the public interest or, in some cases, is not likely to substantially lessen competition.

Notification remains in place unless we revoke it. At any time, we can review the public benefit and detriment from the notified conduct to assess whether the notification should continue.

We assessed 23 certification trade mark applications in 2019–20.

Businesses use certification trade marks to indicate to consumers that a product or service has particular attributes or has been produced according to particular standards.

The Trade Marks Act 1995 requires the ACCC to assess certification trade marks and rules before they can be registered by IP Australia. Under the Trade Marks Regulations 1995 (Cth), the ACCC must make an initial assessment of an application as soon as practicable after receipt.

Our role is important, as we ensure that competition and consumer protection issues are appropriately assessed. In particular, we consider the effectiveness of certification trade mark rules in ensuring that the specified standards are met; that the rules do not unfairly exclude those that meet the requirements to use the mark; and that the certification bodies are competent to decide whether the requirements are being and continue to be met.

We assessed four exclusive dealing notifications in 2019–20.

Under the revisions to the CCA which came into effect on 6 November 2017, third line forcing (a particular form of exclusive dealing) is no longer an automatic breach of the CCA. This means that parties need only notify the ACCC of third line forcing conduct if it risks substantially lessening competition. This has meant that the number of notifications that the ACCC has received has decreased significantly since the revisions came into effect.

We assessed one resale price notification in 2019–20.

In broad terms, resale price maintenance occurs when a supplier of goods or services (for example, a manufacturer or wholesaler) specifies a minimum price below which a reseller must not onsell, or advertise for sale, those goods or services.

Resale price maintenance is prohibited outright under the CCA, regardless of whether it has the purpose, effect or likely effect of substantially lessening competition.

We assessed eight collective bargaining notifications in 2019–20.

For the purposes of the CCA, collective bargaining is an arrangement where two or more competitors come together to negotiate with a supplier or a customer over terms, conditions and prices. The CCA generally requires businesses to act independently of their competitors when making these decisions. Competitors that act collectively in these areas are at risk of breaching the competition provisions of the CCA.

However, small businesses can seek legal protection from the ACCC to engage in collective bargaining by lodging a notification or by applying for authorisation.

Role and functions

The Consumer Data Right is a competition and consumer reform announced by the Australian Government in November 2017.

The ACCC is leading the implementation of the Consumer Data Right in the Australian economy.

The Consumer Data Right will give consumers more control over data relating to them that is held by businesses providing services to them. Consumers will therefore have more choice in where they take their business and more convenience in how they manage their services. In turn, this will drive innovation and competition across the whole economy.

The Consumer Data Right’s objective is to provide consumers with the ability to efficiently and conveniently consent to data held by businesses (data holders) that relates to them being securely disclosed to trusted third parties (accredited data recipients). It also requires businesses to provide public access to information on specified products that they offer.

As the lead implementation agency, the ACCC has a number of roles to support and establish the regime, including:

• developing the rules
• designing, implementing and operating the register and accreditation application platform
• accrediting trusted third parties
• onboarding industry participants and supporting participant testing
• educating and engaging consumers and stakeholders
• monitoring compliance and taking enforcement action.

Consumer data sharing will commence in the banking sector in July 2020 and be progressively rolled out to cover a wider range of data holders and products. That work will be substantially completed in the 2021 calendar year. The Consumer Data Right will also be implemented in the energy sector. Other sectors will also be designated by the responsible minister over time.

Powers

The CDR regime was established by the Treasury Laws Amendment (Consumer Data Right) Act 2019 (Cth)⁵, which inserted Part IVD, ‘Consumer data right’, into the CCA.

Making the rules

The CCA empowers the ACCC to make rules regarding the Consumer Data Right, with the consent of the responsible minister. The CDR Rules create the framework for how the Consumer Data Right operates. They may deal with all aspects of the CDR regime, including the accreditation process, the use and disclosure of CDR data, dispute resolution, and in relation to
the privacy safeguards.

The ACCC is required to have regard to certain matters before making the rules, including the likely effect of the rules on the interests of consumers, the efficiency of relevant markets, the privacy and confidentiality of consumers’ information, and the regulatory impact of the rules.

Accreditation

The ACCC is the designated CDR Data Recipient Accreditor under the CCA. Any person in Australia or overseas who wishes to receive CDR data to offer products or services to consumers must be accredited to ensure that data sharing is safe and secure. Accredited data recipients are subject to continuing obligations.

The CDR Rules set out the criteria that the ACCC will apply when considering whether to grant an application for accreditation. Applicants must demonstrate that they have satisfied the requirements of accreditation under the CDR Rules, including requirements to have information security safeguards in place to protect consumers’ data; to be a fit and proper person to manage CDR data; to have dispute resolution processes; and to maintain adequate insurance.

The CDR Rules also give the ACCC the power to suspend or revoke accreditation in certain circumstances.

Further information about the exercise of the ACCC’s CDR accreditation powers is in Appendix 8: Information required under the Competition and Consumer Act 2010.

Register

As the designated CDR Accreditation Registrar under the CCA, the ACCC is responsible for building and maintaining the Register of Accredited Persons (the CDR Register).⁶ The Registrar ensures that certain information recorded on the Register is made publicly available. Accredited persons and data holders are able to access information on the Register that facilitates their processing of consumer data requests for CDR data.

To maintain the security, integrity and reliability of the CDR Register, the ACCC undertakes and facilitates a range of other activities as necessary—for example, system monitoring and conformance testing, which may require the participation of accredited persons from time to time.

Further information about the exercise of the ACCC’s powers as CDR Accreditation Registrar is in Appendix 8: Information required under the Competition and Consumer Act 2010.

Compliance and enforcement

The CDR regulatory framework establishes clear principles of liability to ensure that data holders and accredited data recipients comply with their obligations. This framework provides that CDR enforcement is a co-regulatory effort between the ACCC and the Office of the Australian Information Commissioner (OAIC).

The ACCC is responsible for enforcing compliance with Part IVD of the CCA, the CDR Rules and the data standards. This includes responsibility for taking strategic enforcement action to address conduct causing systemic detriment; and enforcing accredited data recipients’ compliance with their continuing obligations.

The OAIC is primarily responsible for complaint handling and for strategic enforcement relating to the protection of privacy and confidentiality. The OAIC will also receive and handle notifications from consumers of CDR data breaches.

Actions undertaken to achieve our purpose

The ACCC has worked closely with the other CDR co-regulators⁷ and industry to prepare for the implementation of the Consumer Data Right.

The ACCC’s focus in the start-up phase of the Consumer Data Right has been on significant stakeholder consultation and the development of the CDR Rules for the first designated CDR sector: banking. The CDR Rules (Banking) were made on 4 February 2020. They provide for the Consumer Data Right to be implemented in phases in the banking sector. The ‘big four’ banks⁸ will begin sharing consumer data with a limited number of accredited data recipients in July 2020.

During 2019–20 the ACCC:

• designed, built and implemented the backbone of the Consumer Data Right: the CDR Register and Accreditation Application Platform, which ensures that data can be shared securely only between authorised CDR participants. The system was released on 25 May 2020
• through an expression of interest process, selected 10 entities to undertake extensive testing and assurance activities with the initial data holders (the big four banks) to ensure that the ecosystem would be secure and robust when launched and would function as intended
• gave those 10 entities an opportunity to apply for accreditation to become data recipients on the launch of the Consumer Data Right. Two entities applied and were accredited: Regional Australia Bank Ltd and Frollo Australia Pty Ltd. One entity applied and, as at 30 June 2020, was still under assessment. Five entities progressed significantly through testing but decided not to apply for accreditation at this time, for reasons including the impact of the COVID-19 pandemic. Two entities did not progress significantly through testing and did not apply for accreditation
• following the completion of extensive testing and assurance activities, entered details of each accredited person on the CDR Register and details of the initial four data holders on the associated database
• for the purpose of maintaining the CDR Register, approved the terms and conditions for digital certificates required by accredited persons and data holders
• collaborated with other bodies (including the OAIC and the Data Standards Body) to develop consistent messaging and consumer education material through a CDR website and the CDR Register and Accreditation Application Platform (RAAP)
• worked with the co-regulators and energy industry stakeholders to plan for the implementation of the Consumer Data Right in the energy sector, including preparing a rules framework for consultation.

The launch of the CDR RAAP in May 2020 enabled entities to apply to become accredited data recipients.

Through March 2020 the ACCC worked closely with testing participants, the Department of the Treasury (Treasury) and other areas of the Australian Government to evaluate and respond to the impacts of the COVID-19 pandemic. Under the CCA the ACCC has the power to exempt participants from their obligations under certain circumstances. Due to the impact of COVID-19 we granted a number of exemptions to each of the non-major banks, which will have the effect of delaying the commencement date of some obligations. We also granted two banks exemptions particular to their circumstances. Further information is available on the public register for exemptions.

Case study: Building the RAAP
In 2019–20 the ACCC worked extensively with stakeholders to design and build the CDR Register and Accreditation Application Platform (RAAP), which is the IT backbone of the Consumer Data Right. The RAAP has two main functions:

• it provides a trusted data environment where encrypted data is only shared between approved participants
• it provides a portal where businesses can apply to be accredited.

The ACCC oversaw a testing and assurance program to facilitate the safe implementation by initial participants (following a competitive process to select suitable data recipients) and ensure technical readiness before going live. The priority was the safety and security of the technical architecture. Additional functionality included functions that defined interactions with the register, data application programming interfaces, and integration points between all participants.

The ACCC administered an intensive engagement and collaboration program to work through complex challenges, maintain momentum and ensure readiness for launch.

A test working group was established in September 2019 to create a single forum for subject matter experts representing all parties participating in the testing program. It met 20 times during 2019–20. The group provided guidance and made recommendations specific to industry testing. The Open Banking Implementation Advisory Committee (OBIAC), comprising senior representatives of government and initial data holders, was established in October 2019. The OBIAC convened 25 times during 2019–20 to discuss and inform the ACCC’s strategic decision-making and advice to government.

We also maintained continuous and transparent engagement and support through the collaboration platform GitHub. We used GitHub to consult on 31 items and clarify 45 issues. Consultation through GitHub also assisted prospective data recipients who were not participating in the testing and assurance program to prepare for their adoption of the Consumer Data Right following its launch.

The ACCC supported prospective participants’ adoption of the Consumer Data Right by responding to a substantial number of enquiries to clarify and provide specific guidance on the application of rules and standards and on matters such as accreditation application processes.

Despite the impact of the COVID-19 pandemic on the CDR program and participants, the RAAP was opened to receive applications for accreditation on 25 May 2020 and was ready to facilitate safe and secure live data sharing between data holders and accredited data recipients from 1 July 2020.

The Consumer Data Right will be expanded beyond banking into energy and then other sectors of the economy. A key underlying policy objective of the framework is therefore the interoperability of consumer data sharing between different sectors. The technical architecture has been built to allow it to be scaled as the Consumer Data Right expands to other sectors.

Other work promoting competition

We use our expertise to advise on and advocate for competition in Australia, working with government and other organisations and agencies on legislative or policy reforms affecting competition law.

Internationally we work with counterpart agencies by collaborating, sharing information and working to improve competition and consumer protection practices. We also advise on competition regimes, particularly in the Asia-Pacific region.

Key matters where we sought to promote competition or worked to improve the competitive environment, either domestically or internationally, are discussed below.

Competition and consumer issues in the agriculture sector

Addressing competition and consumer issues in the agriculture sector was one of our 2019–20 priorities.

Aside from our Enforcement work in the agriculture sector (deliverable 2.4), the ACCC’s Agriculture Unit undertook a range of activities to increase our engagement and enforcement in the agriculture sector.

Engagement with the agriculture sector

Our activities to promote compliance with competition and consumer laws in the agriculture sector included:

• conducting industry engagement and compliance work for the implementation of the mandatory Dairy Code of Conduct, which commenced on 1 January 2020. This mandatory code was a key recommendation in the ACCC’s Dairy Inquiry final report, which found significant imbalances in bargaining power at each level of the dairy supply chain, particularly between processors and farmers. The ACCC is responsible for enforcing the code
• examining potential competition and consumer issues in the agricultural machinery industry
• commencing an inquiry into markets for tradeable water rights in the Murray–Darling Basin, as directed by the government on 8 August 2019. Further information on this work is at Murray-Darling Basin Water Markets Inquiry.

Key outcomes in the agriculture sector included:

• education and engagement to inform the industry about the Dairy Code of Conduct and encourage compliance
  • establishing a Dairy Consultative Committee comprising farmers, processors and key industry groups. Three Dairy Consultative Committee meetings were held during 2019–20. The purpose of the meetings was to discuss strategies to educate the industry, especially farmers and processors, on compliance with the newly introduced code
  • producing guidance material relating to the code, including information published on the ACCC website and a fact sheet targeted at farmers
• releasing the ACCC’s Wine Grape Market Study final report in September 2019 and advocating for the recommendations made in the report. More information on the study is at Wine Grape Market Study
• releasing an issues paper on the ACCC’s inquiry into markets for tradeable water rights in the Murray–Darling Basin and holding 10 public forums in locations across the Murray–Darling Basin to consult with stakeholders.

An additional key outcome of our work in the agriculture sector was progressing a research project looking into agricultural machinery after-sales markets. Since April 2018 the ACCC has consulted with various stakeholders including farmers, machinery dealers and industry bodies about their experiences with purchasing and repairing agricultural machinery.

On 28 February 2020 we released a discussion paper that set out a number of initial observations and concerns about issues which may be harmful to competition and to purchasers of agricultural machinery, including the following:

• Access to independent repairs is limited.
• Agreements between manufacturers and dealers may limit access to repairs.
• Farmers may lack recourse in the event of a problem.
• Data ownership and management may raise privacy and competition concerns.

To better understand the extent of the issues, the ACCC is seeking further information and feedback from stakeholders via a survey for machinery purchasers and submissions on the discussion paper. The survey closed on 22 April 2020 and the due date for submissions on the paper was 31 May 2020. The consultation timeframes for the agricultural machinery research project were extended in response to stakeholders’ requests in light of the disruptions caused by the COVID-19 pandemic.

We are analysing the information collected and will use this to inform next steps.

Anti-competitive practices in commercial construction

The Commercial Construction Unit (CCU) of the ACCC was established in June 2017. Since then it has assessed and investigated a number of matters of alleged anti-competitive and unfair practices that impact on competition in construction markets. The CCU has also continued a significant compliance and engagement program that has included stakeholder education sessions and targeted outreach, including meeting with government bodies, industry associations and industry participants.

The CCU has assessed a number of matters that it has identified through proactive work or that industry members have raised with it, including allegations of cartel conduct, other types of potentially anti-competitive arrangements, coercion, unconscionable conduct and unfair contract terms.

In 2019–20 the CCU:

• continued to support the CDPP in its prosecution of the Construction, Forestry, Maritime, Mining and Energy Union and its Australian Capital Territory Divisional Branch Secretary, Jason O’Mara, in relation to alleged cartel conduct
• obtained court enforceable undertakings from two Sydney roofing companies relating to price discussions on industry social media groups that raised concerns under cartel and concerted practices prohibitions. Further details are at Anti-competitive agreements and practices.

Misuse of market power and concerted practices

Anti-competitive conduct and misuse of market power are enduring priorities for the ACCC. In October 2017 we established the Substantial Lessening of Competition Unit (SLC Unit) to focus on anti-competitive conduct. The SLC Unit works particularly on investigations that could give rise to cases under the new s. 46 misuse of market power provision and ‘concerted practices’ provisions that came into force in November 2017.

In addition to carrying out investigations, the SLC Unit has a broader mandate to enhance the ACCC’s investigation of competition cases and consider the way it handles such investigations. It seeks to develop techniques to maximise the commercial relevance of the ACCC’s competition enforcement work by completing investigations quickly.

In 2019–20 the SLC Unit undertook investigations in several industries. For example, the ACCC instituted proceedings against Tasmanian Ports Corporation Pty Ltd (TasPorts) after a six-month investigation by the SLC Unit (see Misuse of market power). This is the first case brought by the ACCC under the amended misuse of market power provision.

Competition in financial services

The ACCC’s Financial Services Competition Branch (FSCB) has a mandate to improve competition in the financial services sector through investigations and enforcement action as well as market studies and advocacy.

The FSCB is responsible for the ACCC’s investigations and enforcement action relating to suspected breaches of the competition provisions of the CCA by those in the financial services sector. This includes assisting the CDPP in the criminal cartel prosecution of Citigroup, Deutsche Bank, ANZ and relevant executives referred to at Analysis of performance.

The FSCB undertook extensive work on two market studies in 2019–20: the Foreign Currency Conversion Services Inquiry and the Home Loan Price Inquiry.

In conducting its work in the financial services sector, the FSCB engages closely with members of the Council of Financial Regulators.

Electronic conveyancing market reform report

On 2 December 2019 the ACCC released an electronic conveyancing (e-conveyancing) market reform paper to assist the Australian Registrars’ National Electronic Conveyancing Council and the relevant state and territory policy-makers in their consideration of e-conveyancing and the design of this emerging market.

The ACCC has no formal role in establishing the regulatory framework for the conveyancing market. This reform paper was released in response to numerous requests by diverse stakeholders to provide guidance on designing a new framework that will allow competition to develop in the market.

Overall, the ACCC observed that:

• the existing regulatory framework for e-conveyancing is no longer fit for purpose
• unless policy-makers urgently move to implement a regulatory framework that facilitates competition and provides certainty, it is likely that new entrants will be unable to sustain their presence in the market, to the detriment of end users
• in the event that competition is not facilitated, the monopoly provider of e-conveyancing services will need to be subject to robust regulatory requirements to protect the interests of stakeholders and end users. This regulation could be complex, costly and time consuming, and would be a suboptimal result compared to effective competition.

The ACCC concluded that, while it has a strong preference for a nationally consistent approach to e-conveyancing, if this cannot be achieved soon then individual state and territory governments should progress their own approaches, as it is preferable that some markets benefit from competition rather than none.

News media bargaining code

In December 2019 the ACCC was tasked with facilitating the development of voluntary codes to address bargaining power imbalances between digital platforms and news media businesses. The government indicated that, if an agreement was not forthcoming, alternative options would be considered.

On 20 April 2020 the Australian Government announced that it had directed the ACCC to develop a mandatory code of conduct to address bargaining power imbalances between Australian news media businesses and digital platforms. The government asked that a draft mandatory code be released for consultation before the end of July 2020, with a final code to be settled soon thereafter.

The elements to be covered in the code include data sharing, ranking and display of news content, and monetisation and sharing of revenue generated from news. The code will also establish appropriate enforcement, penalty and binding dispute resolution mechanisms.

The ACCC is developing the draft mandatory code framework in collaboration with Treasury and the Department of Infrastructure, Transport, Regional Development and Communications and is carrying out consultation with industry stakeholders.

International collaboration on competition

Effective enforcement of Australia’s competition laws in a global economy requires cooperation with similar agencies across the world.

The ACCC works closely with global counterparts on international cartel, merger and other competition enforcement matters that affect Australian consumers.

The ACCC collaborates with international counterparts through forums such as the International Competition Network and the Competition Law Implementation Program in the Association of Southeast Asian Nations (ASEAN) region.

Bannerman Competition Lecture

On 25 February 2020 the ACCC and the Business Law section of the Law Council of Australia hosted the annual Bannerman Competition Lecture in Melbourne.

The lecture was delivered by Isabelle de Silva, President of the French Competition Authority. It focused on the effectiveness of competition policy in the digital economy.

The Bannerman Competition Lecture is named in honour of Ronald Bannerman AO, the first and only Commissioner of Trade Practices and the inaugural Chairman of the ACCC’s forerunner, the Trade Practices Commission. The lecture provides an annual forum for an eminent speaker to reflect on competition and consumer law in Australia and to deliver new ideas and perspectives that the community can debate.

Annual Competition Law and Economics Workshop

On 18–19 October 2019 the ACCC and the University of South Australia School of Law hosted the 17th annual Competition Law and Economics Workshop in Adelaide.

The theme of the workshop was ‘Competition Law: The Penicillin of Public Policy?’. The workshop program is on our website.

The workshop is an annual event providing a high-level forum for debate on emerging issues in competition policy, encompassing practice and theory, law and economics, and domestic and international best practice.

Role and functions

The Australian Consumer Law (ACL) governs a range of conduct that can have a negative impact on both consumers and small business. The law is designed to enable all businesses to compete on their merits in a fair and open market while ensuring consumers are also treated fairly.

The ACCC supports consumers and small businesses by:

• addressing harm done by non-compliance with the ACL
• ensuring that consumers know their rights under the ACL
• ensuring that small businesses know their rights and responsibilities under the ACL
• educating and warning consumers and small businesses about scams.

We also take action to minimise the risks of unsafe consumer goods harming Australian consumers. This includes negotiating recalls of unsafe consumer goods, recommending regulatory action by the minister and taking action against traders and suppliers where warranted.

We use educational campaigns to ensure that consumers and small businesses are fully aware of their rights and responsibilities under the Competition and Consumer Act 2010 (Cth) (CCA) and to encourage businesses to comply with the CCA.

We also work closely with state and territory counterparts to educate, monitor and enforce compliance with the ACL under a one-law, multi-regulator model.

Our deliverables in this area are:

Priorities

While we carefully consider all reported matters, we rarely get involved in individual disputes and complaints; rather, we dedicate our resources and litigation funding to matters that affect significant numbers of people and that have the potential to provide the greatest overall benefit for competition and consumers. This includes pursuing matters that can influence broader industry behaviour.

The ACCC’s Compliance and Enforcement Policy sets out our priorities for the calendar year and the factors we take into account when deciding whether to pursue matters. It can be found on our website.

There are some forms of conduct that are so detrimental to consumer welfare and the competitive process that we will always regard them as a priority. Our enduring priorities include:

• product safety issues which have the potential to cause serious harm to consumers
• conduct affecting vulnerable and disadvantaged consumers
• conduct affecting Indigenous Australians.

Our annually revised Compliance and Enforcement Policy sets out competition and consumer priorities for the year and the factors we take into account when deciding whether to pursue particular matters. We also release specific priorities relating to our product safety work. These are discussed further at Product safety priorities.

We revised and released our Compliance and Enforcement Policy in February 2019 and again in February 2020. In relation to consumer and small business related priorities, our 2019 and 2020 policies focused on the following areas in the reporting period, in addition to our enduring priorities.

• Consumer guarantees on high-value electrical and whitegoods products—in particular, those supplied by large retailers and manufacturers.
• Conduct that may contravene the misuse of market power provisions and the concerted practices provisions.
• Anti-competitive conduct and competition issues in the financial services sector, including issues with respect to foreign exchange services.
• Consumer and competition issues arising from opaque and complex pricing of essential services—in particular, those in energy and telecommunications.
• The impact on consumers arising from the collection and use of consumer data by digital platforms, with a focus on the transparency of data practices and the adequacy of disclosure to consumers.
• Competition and consumer issues arising from customer loyalty schemes.
• Emerging consumer issues in advertising and subscription service practices on social media platforms, with a focus on the impact on younger consumers.
• Ensuring that small businesses receive the protections under the CCA, with a focus on the Franchising Code of Conduct and unfair contract terms.
• Competition and fair trading issues in the agriculture sector, with a focus on unfair contract
  terms in supply agreements and the viticulture sector.
• Ensuring the effectiveness of the compulsory recall of vehicles with Takata airbags.
• Improving the safety of quad bikes.
• Anti-competitive conduct and unfair business practices impacting competition in commercial construction markets.

• Competition and consumer issues in the funeral services sector.
• Competition and consumer issues relating to digital platforms.
• Competition and consumer issues arising from the pricing and selling of essential services, with a focus on energy and telecommunications.
• Misleading conduct in relation to the sale and promotion of food products, including health and nutritional claims, credence claims and country of origin.
• Conduct affecting competition in the commercial construction sector, with a focus on large public and private projects and conduct impacting small business.
• Ensuring that small businesses receive the protections of the competition and consumer laws, with a focus on the Franchising Code of Conduct.
• Ensuring compliance with the Dairy Code of Conduct.
• Empowering consumers and improving industry compliance with consumer guarantees, with a focus on high-value goods such as motor vehicles, electrical products and whitegoods.
• Pursuing regulatory options to prevent injuries and deaths to children caused by button batteries.
• Finalising the compulsory recall of vehicles with Takata airbags.

Each year we also release a standalone product safety policy setting out the principles we adopt to prioritise and address product safety risks. In 2019–20, in addition to the product safety related priorities included in the compliance and enforcement priorities, we focused on the following two sets of product safety priorities.

• Supporting strategies that help prevent injuries and deaths to children caused by button batteries.
• Progressing the development of a General Safety Provision and other product safety reforms.
• Supporting strategies that help prevent injuries and deaths to infants caused by unsafe sleeping products.
• Improving product safety in the online marketplace, with a focus on improving the safety of products sold on online platforms.
• Raising awareness and building capacity to address consumer safety hazards associated with interconnected devices.
• Continuing to review and update current mandatory safety standards and bans and conduct surveillance.
• Improving product safety data through progressing the development of a national product safety incidents database.

• Implementing strategies to prevent injuries and deaths to infants caused by sleeping products identified as unsafe.
• Improving product safety in e-commerce through enhanced compliance commitments from online platforms.
• Scoping more effective risk controls for potential intervention to prevent injuries and deaths caused by furniture falls, including toppling furniture.

More information about the 2019 and 2020 consumer product safety priorities may be found at Product safety priorities.

Powers

Under the consumer protection provisions of the CCA, we have powers to take court action, seek court enforceable undertakings, seek corrective advertising or consumer refunds and other forms of redress, issue infringement notices and public warning notices and resolve matters administratively. A description of these powers and our approach to using them is in our Compliance and Enforcement Policy on our website and in Appendix 7: Competition and Consumer Act 2010 and other legislation.

Under the ACL, the ACCC, along with state and territory regulators, can also regulate consumer goods and product-related services by issuing safety warning notices, banning products on an interim or permanent basis, imposing mandatory safety standards and issuing a compulsory recall notice to suppliers.

We also have certain powers under industry codes and schemes.

Performance indicators

The performance indicators below are from the ACCC and AER Corporate Plan 2019–20.

Actions to achieve this deliverable include the enforcement action and other initiatives we undertake to enhance compliance with the ACL to protect consumers and small businesses from conduct that harms them. With finite resources, we direct our efforts to areas with the greatest harm, determining our priorities for action each year. As a strategic regulator, we look to intervention that can influence behaviour across industries and the economy.

Actions to achieve this deliverable include the partnerships we make to assist us in taking proactive, timely and effective compliance and enforcement action—for example, with the Department of the Treasury (Treasury), the Australian Securities and Investments Commission (ASIC) and state and territory consumer protection agencies, businesses, industry associations and consumer groups.

Actions to achieve this deliverable include the methods we use to identify product safety issues and the kinds of actions we take where they are warranted.

The ACCC helps to ensure that small businesses understand and comply with their obligations under the ACL. It encourages them to exercise their rights under the CCA as the customers of larger suppliers. Our aim is to promote a competitive and fair operating environment for small business and, importantly, ensure small businesses understand how the legislation can help them.

Actions to achieve this deliverable include education of consumers about their consumer rights and empowering them to take action when those rights are not respected.

Analysis of performance

In 2019–20 we exceeded most of the annual targets set for ACL investigations. We achieved 50 new ACL interventions, exceeding the target of 40. We also achieved significant outcomes in a number of litigated ACL matters, including 10 matters where penalties exceeded $1 million:

• $125 million against Volkswagen AG, the highest ever penalty awarded under the ACL⁹
• $26.5 million against Cornerstone Investment Aust Pty Ltd (trading as Empower Institute, in liquidation), the second highest ever penalty awarded under the ACL
• $14 million against STA Travel Pty Ltd
• $6.4 million against Optus Internet Pty Ltd and Optus Mobile Pty Ltd
• $6 million against Bupa Aged Care Australia Pty Ltd
• $4.5 million against Novartis Consumer Health Australasia Pty Ltd and GlaxoSmithKline Consumer Healthcare Australia Pty Ltd
• $4.2 million against Geowash Pty Ltd
• $4.165 million against Unique International College Pty Ltd
• $3.5 million against Sony Interactive Entertainment Network Europe Limited
• $2 million against Ultra Tune Australia Pty Ltd.

The ACCC has now achieved total penalties of $35.165 million to date in our action against VET FEE-HELP higher education providers.

Total penalties achieved for breaches of the ACL and industry codes during the period were $198 265 000.¹⁰

The ACCC continues to prioritise work to assist Indigenous Australians. This remains an enduring priority under the ACCC’s Compliance and Enforcement Policy. We continue to engage with Indigenous Australians and their representative bodies, including on important messaging around the Takata airbag recall and raising awareness of scams. As governments introduced restrictions resulting from the COVID-19 pandemic, limiting our ability to visit Indigenous communities, we moved our dedicated outreach employees into frontline customer contact roles. This added to our capacity to support vulnerable and disadvantaged consumers in our Infocentre.

The ACCC continued to focus on protections for small businesses, undertaking a number of investigations and progressing matters in relation to alleged breaches of the Franchising Code of Conduct and the Horticulture Code.

We also considered a number of instances of the alleged use of unfair contract terms (UCTs) in standard form contracts. Following ACCC action the Federal Court declared certain terms in standard form contracts used by two businesses to be unfair and therefore void. We also achieved formal administrative resolutions in two other instances, with businesses agreeing not to enforce alleged UCTs following concerns raised by the ACCC. In March 2020 we made a submission responding to Treasury’s Consultation Regulation Impact Statement (CRIS) on enhancements to UCT protections. This is discussed further at Enhancements to unfair contract term protections.

We have continued efforts to pursue an integrated approach across our enforcement and compliance work. We have had successful outcomes in product safety, agriculture and small business protections during the period. Good compliance outcomes can often be achieved by educating businesses about their responsibilities. This year we exceeded our annual targets for small business, consumer and product safety compliance guidance and initiatives, including those that address working in partnership. For example, we published 22 pieces of new or revised business compliance resources this year—significantly higher than our target of 10. This reflects several factors:

• We published a number of guidance materials to educate both franchisees and franchisors on their rights and obligations in relation to disclosure practices, including the Disclosure practices in food franchising report, which detailed key findings from compliance checks on 12 franchisors in the food services sector.
• We published a large number of translated fact sheets in various languages to educate suppliers about the voluntary Industry Code for Consumer Goods that Contain Button Batteries as part of our continuing work to prevent injuries and deaths to children caused by button batteries.
• We published a number of updates to our guidance for suppliers affected by the Takata airbag compulsory recall.

This result also reflects the reactive nature of some of our consumer protection work—we often need to move resources to address significant issues when they arise.

We also continue to manage a number of continuing matters at litigation and appeal stage, including matters that have now been running for multiple years. These matters continue to require ACCC resourcing, diverting resources from the investigation and progression of new matters. This has been identified as a key reason the ACCC fell slightly short of meeting its performance indicator targets in relation to the number of in-depth investigations completed, the percentage of in-depth investigations completed within 12 months, and the percentage of initial investigations completed within three months during the period. Additionally towards the end of the year, some of the ACCC’s compliance and enforcement resourcing was also redirected towards work in response to the COVID-19 pandemic, as discussed further below.

Addressing the risk of harm from consumer products is an enduring ACCC priority. This year we met or exceeded the majority of the performance targets relating to this area. We undertook significant work on both the Takata airbag compulsory recall, as well as assisting the Department of Infrastructure, Transport, Regional Development and Communications with the non-azide driver inflator (NADI) airbag voluntary recall. We undertook reviews of a number of standards, including finalising new mandatory safety standards for miniature motorbikes, aquatic toys and projectile toys; and in October 2019 the minister accepted an ACCC recommendation to establish a comprehensive safety standard for quad bikes, to be implemented over a two-year period.

The ACCC faced unexpected environmental challenges during the period that impacted our enforcement and compliance work, including the COVID-19 pandemic, bushfires and drought. As noted earlier, while our 2020 compliance and enforcement priorities remain in place, we refocused our efforts on the priorities most relevant to competition and consumer issues arising from the impact of these challenges. This included the establishment of a bushfire hotline and an internal COVID-19 Taskforce, as well as enhancing our efforts to disrupt scam conduct by businesses attempting to exploit the COVID-19 crisis.

As outlined in the Analysis of performance for strategy 1 , the COVID-19 pandemic has also had an impact on the ACCC’s own workforce. We have transitioned the majority of our employees to working from home to assist us in maintaining social distancing, and this has affected timeframes for some of our continuing investigations and other functions. Our Infocentre employees are the initial point of contact for enquiries and reports to the ACCC by telephone, by mail and via our website, and the majority of them were involved in the transition to working from home. This was the first time the team had been mobilised to respond from home to calls and contacts.

In addition to this major transition, in March 2020 we experienced a significant increase in contacts due to the COVID-19 pandemic, with non-scam written contacts tripling as consumers and businesses sought guidance about their rights and obligations in relation to travel and event cancellations. This increase in volume continued throughout the rest of the reporting period. Following the move to working remotely, the Infocentre was able to serve 67.3 per cent of calls between April and June. In total, the Infocentre received 20 256 COVID-19-related contacts from consumers and businesses during the reporting period.

Challenges ahead for the ACCC’s consumer protection work include continuing to balance project, policy and market study work with our investigative work. We will also need to continue to balance work to address consumer and small business concerns in response to the COVID-19 pandemic, while taking into account the impacts on our regulated businesses.

Education is an important aspect of our consumer protection work. A well-informed consumer is less likely to fall victim to scams or to the hazards of unsafe products, for example, this year we published 21 new or revised consumer education resources, exceeding our annual goal of 10. This outcome reflects our continued scam disruption work and our focus on providing information on button batteries to linguistically diverse consumers.

Deliverable 2.1: Deliver outcomes to address harm to consumers and small businesses resulting from non-compliance with the Australian Consumer Law and Industry Codes

The ACL, Horticulture Code and Franchising Code of Conduct give the ACCC a range of remedies and powers to respond to possible breaches of fair trading and consumer protection laws. To enforce these laws we:

• institute court proceedings. This year, we commenced eight new consumer protection and small business protection related court proceedings
• accept court enforceable s. 87B undertakings where a breach, or a potential breach, might otherwise justify litigation. This year, we accepted 17 consumer protection and small business related s. 87B undertakings¹¹
• issue infringement notices. This year, we received payment for 28 infringement notices from 18 traders, with penalties totalling $579 600
• accept administrative resolutions. These generally involve a business agreeing to stop a particular type of conduct, compensate consumers and take other measures to ensure that the conduct does not recur. This year we resolved a number of matters administratively, with seven matters resolved through a formal administrative resolution.

The ACCC’s actions relate to consumer issues in a range of businesses and priority areas, including in relation to essential services such as broadband, digital platforms, vulnerable and disadvantaged consumers, Indigenous Australians and product safety.

A complete list of commenced, concluded and continuing court proceedings is included in Appendix 10: Litigation matters, review proceedings and tribunal proceedings in 2019–20.

Our Compliance and Enforcement Policy governs our annual priorities in this area. In line with these, in this section we have grouped our outcomes under:

• actions taken in response to the COVID-19 pandemic
• vulnerable and disadvantaged consumers
• conduct affecting Indigenous Australians
• consumer guarantees
• essential services
• digital platforms enforcement matters
• customer loyalty schemes
• scams
• country of origin labelling
• other consumer protection outcomes:
  • broadband
  • actions taken under priority factors
• product safety (see deliverable 2.3 Product safety priorities)
• Takata airbags (see deliverable 2.3 on Takata airbags)
• small business protection (see deliverable 2.4 Support small business):
  • UCTs
  • Franchising Code of Conduct
• enforcement work in the agriculture sector (see deliverable 2.4 Enforcement work in the agriculture sector).

On 27 March 2020 the ACCC released its response to the COVID-19 pandemic. As mentioned above, we decided to refocus our efforts on the priorities most relevant to competition and consumer issues arising from the impact of COVID-19.

We established an internal COVID-19 Taskforce to quickly address consumer and small business issues arising from the pandemic by:

• communicating directly with businesses and industry groups
• taking action against businesses that are not complying with the ACL
• prioritising the cessation of contravening conduct
• prioritising consumer redress

The taskforce also seeks to educate business about their obligations in relation to remedies for cancellations and suspension of services as a result of COVID-19.

We have released advice for businesses and consumers in a number of sectors. More information on this guidance is at Empowering consumers through communication—campaigns. We will continue to update our website with advice as new issues emerge and in response to consumer enquiries via our website, Infocentre and social media channels.

In addition:

• in response to pressure from the ACCC, Flight Centre agreed to stop charging customers hundreds of dollars in cancellation fees to get a refund for travel that was cancelled due to the COVID-19 pandemic. Flight Centre will also refund thousands of customers who, from 13 March 2020, were charged $300 per person to get a refund for a cancelled international flight or $50 for a domestic flight
• after the ACCC raised concerns with Qantas, it contacted its customers to advise they were entitled to refunds for domestic or international flights cancelled or suspended due to COVID-19 travel restrictions. The ACCC was concerned that Qantas’ communications to customers between 17 March 2020 and 31 May 2020 did not adequately inform them of their right to receive a refund. In some cases, the ACCC considers Qantas’ emails may have encouraged these customers to cancel bookings themselves in order to receive a credit when many would have been eligible for a refund
• we focused our attention on instances of excessive pricing (also known as price-gouging). While excessive pricing is generally not illegal, if a business makes misleading claims about the reason for price increases, it will be breaching the ACL. It is also possible that extreme excessive pricing for products essential to the health or safety of vulnerable consumers may amount to unconscionable conduct. We engaged with industry stakeholders, such as online platforms, about measures they have in place to prevent the sale of essential products at excessive prices
• we continued to raise awareness of COVID-19 scams, particularly as scammers adapt old methods to prey on new fears at a time when large parts of the community are already feeling vulnerable. More information on our scams work is at Scams
• we continued to prioritise our product safety responsibilities to keep Australians safe. We have had to temporarily suspend some of our in-store inspection work, but we have redirected resources to our online surveillance work. We are closely monitoring products that may expose consumers to hazards in their homes and products that are in greater demand as a consequence of COVID-19, such as hand sanitiser and face masks.

Conduct affecting vulnerable and disadvantaged consumers remains an enduring priority. The ACCC recognises that vulnerable and disadvantaged consumers can be disproportionately affected by conduct in breach of the ACL—in particular, misleading and deceptive conduct and unfair business practices. We take compliance and enforcement action to protect, educate and empower these consumers.

Enforcement outcomes we achieved in 2019–20 include the following:

• Cornerstone Investment Aust Pty Ltd (trading as Empower Institute (in liquidation)) was ordered to pay $26.5 million in penalties after the Federal Court found that it engaged in a system of unconscionable conduct when it enrolled consumers in VET FEE-HELP funded courses. The Court also ordered Empower to repay more than $56 million to the Commonwealth for funding it had received to provide VET FEE-HELP courses.
• Unique International College Pty Ltd was ordered to pay $4.165 million in penalties after the Federal Court found that Unique engaged in unconscionable conduct against five consumers, made false or misleading representations to four of these consumers, and breached the unsolicited consumer agreements provisions in relation to six consumers.
• The Federal Court found that the Australian Institute of Professional Education Pty Ltd engaged in misleading or deceptive conduct and implemented a system of unconscionable conduct when enrolling consumers in online diploma courses under the former VET FEE-HELP loan program. We are currently awaiting the penalty judgment in this matter.
• Bupa Aged Care Australia Pty Ltd was ordered to pay $6 million in penalties for making misleading representations and wrongly accepting payments for extra services not provided, or only provided in part, to residents at 20 aged care homes. The Court also ordered Bupa, by consent, to compensate all affected current and past residents within 12 months.
• The Federal Court ordered hair loss treatment business Ashley & Martin to refund money paid by consumers as a result of unfair terms contained in its ‘Personal RealGROWTH Program’ hair loss treatment program. This followed a finding by the Court that terms in three of Ashley & Martin’s standard form contracts with consumers were void because they were unfair.
• Panthera Finance Pty Ltd was ordered to pay $500 000 in penalties for unduly harassing three consumers over debts they did not owe and for misleading one of the three consumers.

The ACCC has continued to deliver outcomes against its enduring priority of matters impacting Indigenous Australians. We seek to deliver these outcomes in a collaborative and culturally respectful way through engagement with Indigenous Australians and their representative bodies.

In 2019–20:

• messaging around the continuing Takata airbag recall and engagement with Indigenous Australians about scams. We advised on current scams and built trust to encourage the reporting of scams to the ACCC.
• following the Federal Court’s order that Birubi Art Pty Ltd (in liquidation) pay penalties of $2.3 million for making false or misleading representations about products it sold, we continued to work with stakeholders in the Indigenous art industry to address conduct impacting Indigenous Australian artists
• ACCC representatives appeared at a Senate Environment and Communications Legislation Committee hearing on 6 November 2019 in relation to the Competition and Consumer Amendment (Prevention of Exploitation of Indigenous Cultural Expressions) Bill 2019.

• We made it a priority to continue to assist remote and regional Indigenous communities in managing the COVID-19 pandemic once we suspended our physical outreach visits to Indigenous communities.
• As Chair of the National Indigenous Consumer Strategy (NICS), in consultation with its members, we made the decision to suspend the implementation of the NICS 2020–22 Action Plan.
• The ACCC and NICS continued to deliver outcomes under the NICS 2017–19 Action Plan during this time, using digital platforms. For example, the ACCC’s Indigenous consumer social media platform, Your Rights Mob, was used to deliver timely and topical messaging to Indigenous consumers.

In 2019–20 the ACCC continued to prioritise work on consumer guarantees. A particular focus has been on high-value goods such as motor vehicles, electrical products and whitegoods. The focus on these industries reflects their continued status as the industries most complained about to the ACCC.

In 2019–20:

• we instituted proceedings against Mazda Australia Pty Ltd for allegedly engaging in unconscionable conduct and making false or misleading representations in its dealings with consumers who bought any of seven new Mazda vehicle models. It is alleged that these consumers began experiencing faults with their vehicles within a year or two of purchase. These faults affected their ability to use the vehicles. We allege that Mazda repeatedly refused to provide a refund or a replacement at no cost to the consumers. It also pressured them to accept lesser offers, which were made only after multiple failures of the vehicles and repeated attempts at repairs
• LG Electronics Pty Ltd was ordered to pay $160 000 in penalties for making misleading representations to two consumers about their consumer guarantee rights
• online spare parts retailer Big Warehouse Pty Ltd paid $12 600 after the ACCC issued an infringement notice for allegedly breaching the ACL by misleading a consumer about their consumer guarantee rights in relation to spare parts they ordered. Big Warehouse also provided the ACCC with a court enforceable undertaking in which it admitted it was likely to have contravened the ACL. It made a commitment to provide compensation to certain affected customers
• Woolworths Group Ltd (trading as BIG W) provided the ACCC with a court enforceable undertaking in which it admitted that it may have breached the ACL by making false or misleading representations when dealing with customers who purchased faulty Dyson appliances
• Target Australia Pty Ltd provided the ACCC with a court enforceable undertaking after Target’s customer service staff told some customers who complained about faulty Sony PlayStations that they were not entitled to any remedy from Target and would have to contact Sony directly for a remedy
• ZeniMax Media Inc, ZeniMax Europe Limited and ZeniMax Australia Pty Ltd (together, ZeniMax) provided the ACCC with a court enforceable undertaking after they acknowledged that they were likely to have misled consumers about their consumer guarantee rights in relation to the online action game Fallout 76
• Electronics Boutique Australia Pty Ltd (trading as EB Games) provided the ACCC with a court enforceable undertaking in which EB Games committed to refunding consumers after acknowledging it is likely to have misled consumers about their consumer guarantee rights in relation to faults with Fallout 76
• Sony Interactive Entertainment Network Europe Limited (Sony Europe) was ordered to pay $3.5 million in penalties for making false and misleading representations on its website and in dealings with Australian consumers about their consumer guarantee rights. Sony Europe admitted it made misleading representations by advising certain consumers it was not required to refund faulty PlayStation games once they had been downloaded, or if 14 days had passed since it was purchased; that it did not have to provide a refund unless the game developer authorised it; and that it could provide a refund using virtual PlayStation currency instead of money.

A full list of commenced, finalised and continuing litigation for the period is in Appendix 10: Litigation matters, review proceedings and tribunal proceedings in 2019–20.

In 2019 and 2020 the ACCC continued to address competition and consumer issues arising from opaque and complex pricing. Particular areas of focus were the energy and telecommunications sectors.

Extensive work was undertaken across the agency on the development of guidance and compliance monitoring for the Electricity Code and on the development of the Guidelines on Part XICA—prohibited conduct in the energy market. The ACCC has monitoring and enforcement roles under specific rules that apply to the electricity sector (see also Mandatory codes of conduct). These rules seek to address particular competition and consumer issues in the electricity sector.

During the reporting year, we resolved administratively a small number of instances of non‑compliance with the price cap on standing offers under the Electricity Retail Code and monitored compliance with the advertising requirements of the code. We also updated our industry guidance to reflect a number of amendments to the code that came into effect during the year.

The ACCC has a role in enforcing new prohibitions on the conduct of electricity retailers and generators that came into effect on 10 June 2020.¹² The prohibitions, which form part of the CCA, aim to prevent conduct that leads to consumers and small businesses facing excessively high electricity costs. We issued guidelines for industry setting out the approach we will take to our enforcement role. Detail on our Electricity Market Monitoring 2018–2025 inquiry is at Electricity Market Monitoring Inquiry 2018–2025.

In 2019–20:

• M2 Energy Pty Ltd (trading as Dodo Energy) and CovaU Pty Ltd paid penalties of $37 800 and $12 600 respectively after the ACCC issued them with infringement notices for alleged misleading claims about discounts available on their energy plans. Dodo and CovaU both also made commitments to refund affected customers
• Vodafone provided a court enforceable undertaking after it admitted to making false or misleading representations about its third-party direct carrier billing service by charging consumers for content they had not agreed to purchase or had purchased unknowingly. The ACCC carried out the investigation under a delegation of ASIC’s powers. Vodafone undertook to contact potentially affected customers and offer refunds where appropriate
• we instituted proceedings against telecommunications provider Superfone Pty Ltd for allegedly making false or misleading representations and breaching laws designed to protect consumers from issues arising from unsolicited telemarketing sales. The ACCC alleged that telemarketers acting on behalf of Superfone cold-called consumers offering them discounted plans on their existing network if they signed up to a new contract via Superfone, making them think that its offers and services were endorsed by or affiliated with their existing telecommunications provider when this was not the case.

In 2019 and 2020 the ACCC prioritised competition and consumer issues concerning the use of digital platforms, algorithms and consumer data.

In December 2019 the Australian Government committed to adopting the key recommendations from the ACCC’s Digital Platforms Inquiry, including the establishment of a dedicated ACCC Digital Platforms Branch. This allows us to continue our scrutiny of digital platforms and pursue current and future consumer and competition law enforcement cases. Further information on the Digital Platforms Inquiry and the work of the Digital Platforms Branch is at Digital platforms.

In 2019–20:

• we instituted proceedings against Google Australia Pty Ltd and Google LLC (together, Google) for allegedly engaging in misleading conduct and making false or misleading representations to consumers about the personal location data Google collects, keeps and uses when certain Google account settings are enabled or disabled
• we instituted proceedings against online health booking platform HealthEngine Pty Ltd for misleading and deceptive conduct relating to the sharing of consumer information with insurance brokers and the publication of patient reviews and ratings. The ACCC claims that HealthEngine manipulated the patient reviews it published and that it misrepresented to consumers why HealthEngine did not publish a rating for some health practices.

Competition and consumer issues arising from customer loyalty schemes were a new priority area for the ACCC in 2019. We completed a review of customer loyalty schemes with a focus on the schemes available in Australia.

In 2019–20:

• the ACCC conducted a review of customer loyalty schemes to gain a better understanding of how customer loyalty schemes operate; the collection, use and disclosure of consumer data; and the terms and conditions of these schemes
• we published the Customer loyalty schemes final report in December 2019. The report details the ACCC’s findings and recommendations following its review, research and consultation. A summary of the recommendations made by the report, ‘Changes needed to protect consumers using customer loyalty schemes’, is available on our website.

A scam is a fraudulent act or scheme perpetrated by businesses or individuals that takes money or other goods from an unsuspecting person or steals their personal identification information. Scams that target personal information can lead to identity theft, which is then used to perpetrate fraud or cybercrime. Scams can have a significant financial impact on individuals and businesses. They target people of all backgrounds, ages and income levels. Every year scams cost Australians hundreds of millions of dollars and cause considerable non-financial harm. The ACCC plays an important role in educating Australians about how to protect themselves from scams.

This remained a priority issue for the ACCC in 2019–20. Our approach recognises that we cannot address or respond to each instance of individual harm but are well placed to identify the scams causing the greatest harm and work with other regulators and private organisations to prevent or minimise damage caused by scams. The ACCC uses a variety of mechanisms to prevent and minimise the harm that these scams cause, including through education, communication, media stories and disruption work.

In 2019–20 we undertook the following projects.

Both the Australian bushfires in the summer of 2019–2020 and the COVID-19 pandemic created new opportunities for scammers to target Australian consumers. Scams frequently involved requesting donations and falsely selling products. Also, scammers impersonated charities, large businesses or government departments. The ACCC provided a number of resources aimed at educating consumers and small businesses about these scams:

• We operated a dedicated bushfire scam reporting phone line from 7 January to 27 March 2020. We answered over 1194 calls to this phone line and received over 331 bushfire-related
  Scamwatch reports through the website.
• Following the outbreak of COVID-19, we undertook targeted scams analysis to identify new scam trends taking advantage of the pandemic. We used this data to spread awareness through our media channels and liaise with other government departments and private businesses.
• Within the reporting period, we received 3228 reports of COVID-19-related scams, with $1.6 million in losses.
• We issued a number of media releases and Scamwatch radar email alerts warning the public about both bushfire scams and COVID-19 scams:
  • Bushfires and scams (6 January 2020)
  • Bushfires and scams (9 January 2020)
  • COVID-19 scams (18 March 2020)
  • Warning on COVID-19 scams (20 March 2020)
  • Scammers targeting superannuation in COVID-19 crisis (6 April 2020)
  • Current COVID-19 scams (6 May 2020)
  • Don’t get scammed looking for a lockdown puppy (18 May 2020).

On 22 June 2020 we published Targeting scams 2019: a review of scam activity since 2009. The report provides key findings on 2019 scams, as well as insights into scam trends over the decade. Key findings from the report are:

• Australians lost over $634 million to scams in 2019 (as reported to Scamwatch, other government agencies and the big four banks)
• business email compromise scams accounted for the highest losses in 2019, with reported
  losses of $132 million
• based solely on reports provided to the ACCC in 2019, scams originating on social media
  increased by 20 per cent and contacts via mobile phone apps increased by 29 per cent.

The report also includes commentary on the psychological tactics that scammers use to manipulate victims and the lessons learned from people who reported a scam but did not lose money or personal information.

The ACCC is the chair of the Scams Awareness Network (SAN), which consists of 40 government regulatory agencies and departments in Australia and New Zealand. In 2019–20 we continued to share Scamwatch report data and facilitate monthly updates across the SAN to raise awareness of scams and disrupt them.

In August 2019 the SAN hosted the Scams Awareness Week campaign, which was supported by over 100 partners. The campaign theme, ‘Too Smart to be Scammed?’, urged the public to test their knowledge of scams and targeted people who might not otherwise engage with scam warnings because they regard themselves as too skilled or careful.

In 2020 the SAN worked together to plan the Scams Awareness Week Campaign scheduled for launch on 17 August 2020. The campaign focuses on raising awareness about identity crime.

The ACCC continued its regular meetings with the Australian Communications and Media Authority (ACMA), the Australian Cyber Security Centre (ACSC) and the Department of Infrastructure, Transport, Regional Development and Communications in relation to the Scam Technology Project, which aims to find practical technological solutions to scams.

Scamwatch is an ACCC-run website that provides a wealth of information to consumers and small businesses about how to recognise, avoid and report scams. It contains scams information in 12 languages other than English. Scamwatch uses scam reports to spot emerging issues, and it warns the public through media releases, social media updates and radar alerts. It also engages with the community at public forums and events to provide more targeted messaging for particular groups—such as prioritising emerging issues affecting vulnerable and disadvantaged consumers.

In 2019–20:

• Scamwatch received 3 843 815 site visits and 7 639 253 page views
• the Little black book of scams was downloaded 14 127 times, with 102 353 hard copies distributed across Australia to financial institutions, police stations and community organisations
• we distributed 15 Scamwatch radar email alerts on emerging scams to our subscribers
• the number of subscribers to the email alerts increased by 19.4 per cent to 103 538
• using our Scamwatch Twitter profile (@Scamwatch_gov), we posted 375 tweets and retweets to our followers. In 2019–20 the number of followers increased by 22 per cent to 25 438
• we held meetings with the eSafety Office, ACMA, ACSC, Australian Taxation Office (ATO), NBN Co, National Australia Bank, Commonwealth Bank of Australia, Westpac, Australia and New Zealand Banking Group, AutoTrader, Western Union, Fraud Watch International, the Australian Financial Crimes Exchange, IDCARE, Facebook, Telstra, GoFundMe, the Telecommunications Industry Ombudsman, Fintel Alliance Australia Post, the eSafety Commission and the Cyber Security Government Stakeholder group to discuss scams prevention and awareness raising
• we distributed warnings about scams targeting the Chinese community in Australia through universities. These warnings were provided in both English and Chinese translations.

The ACCC monitors scam reports and, where appropriate, shares intelligence from reports with other government agencies, law enforcement and private organisations.

Scamwatch engages with businesses that scammers use to source victims or receive money through—for example, social media platforms, online shopping platforms, financial intermediaries and telecommunications businesses. The ACCC encourages these private organisations to monitor scams, raise awareness and disrupt scams that occur on or via their services.

In 2019–20 we:

• shared intelligence with the Australian Federal Police and state police agencies in cases of cybercrime and criminal fraud
• facilitated various scam takedowns, including by providing relevant data to social media platforms and the ACSC
• met with ASIC to arrange sharing of information on superannuation and cryptocurrency scams.

Misleading conduct in relation to the sale and promotion of food products, including country of origin claims, are a priority for the ACCC for 2020. We continue to work alongside state and territory regulators to monitor compliance with the Country of Origin Food Labelling Information Standard 2016 and to provide information about the standard and ACL safe harbours for origin claims to consumers and businesses.

In 2019–20 we:

• continued to partner with the National Measurement Institute to conduct market surveillance. This program was paused in March 2020 due to the COVID-19 pandemic but was on track to review country of origin labels on 10 000 products this financial year
• finalised the first round of compliance checks to verify the country of origin claims on 70 products sold by major supermarkets
• made a submission to the then Department of Innovation, Industry and Science regulatory reform process Clarifying Eligibility for Origin Claims in the Complementary Medicines Sector. See New regulations for country of origin labelling for complementary medicine products for more information on this process, including the introduction of a new regulation.

While the ACCC will always prioritise current priority areas under our Compliance and Enforcement Policy, we also retain capacity to pursue other matters that display priority factors and will continue important residual work in areas previously identified as priority areas.

In 2019–20 the ACCC continued important residual work relating to consumer issues in the provision of broadband services, including addressing speed claims and statements made during the transition to the National Broadband Network (NBN). This follows the ACCC’s work under our Measuring Broadband Australia program and supports our commitment to truth in advertising relating to broadband speeds.

In 2019–20:

• Optus Internet Pty Limited and Optus Mobile Pty Limited were ordered to pay $6.4 million in penalties for making misleading claims to consumers about home internet disconnections
• we accepted a court enforceable undertaking from telecommunications provider BVivid Pty
  Ltd for making telemarketing calls to consumers in areas transitioning to the NBN that BVivid
  admitted likely breached the ACL. BVivid also paid $25 200 in penalties after being issued with two infringement notices. The ACCC alleged that BVivid cold-called consumers and told them their internet services would be disconnected or they would lose their telephone number if they did not move to the NBN immediately
• we accepted a court enforceable undertaking from Dodo Services Pty Ltd (Dodo) in relation
  to claims about its retail broadband plans supplied over the NBN being ‘perfect for streaming’. The ACCC considered the representations misleading because Dodo customers on some plans could not reliably stream high-quality video, particularly when others in the household were using the internet at the same time. On other plans, Dodo customers could not stream ultra-high definition (HD) video at all. As part of its undertaking, Dodo agreed to refund up to $360 000 to around 16 000 affected customers
• NBN Co provided a court enforceable undertaking to the ACCC, admitting that it misled Canberra consumers who lived in areas where the NBN was operating into thinking that their
  telephone and internet services supplied over the TransACT Network would be disconnected if they did not move to the NBN. NBN Co committed to reimbursing the early termination costs paid by consumers and businesses that moved to NBN Co before 10 July 2019 and then chose to return to the TransACT Network. This undertaking is also discussed at Telecommunications
• we instituted proceedings against Vocus Group companies Dodo Services Pty Ltd (Dodo) and Primus Telecommunications Services Pty Ltd (iPrimus), alleging they made false or misleading claims about the NBN broadband speeds their customers could achieve during busy evening hours. The ACCC is alleging that Dodo and iPrimus used a fundamentally flawed testing methodology, developed by Vocus, which was not a reasonable basis for their advertising claims about certain typical evening speeds.

In 2019–20:

• Volkswagen AG was ordered to pay a record $125 million in penalties after the Federal Court declared, by consent, that Volkswagen breached the ACL by making false or misleading representations about compliance with Australian diesel emissions standards. Volkswagen admitted that, when it sought approval to supply and import more than 57 000 vehicles into Australia, it did not disclose the existence of two-mode software. When switched to ‘mode 1’ for the purpose of emissions testing, the software caused vehicles to produce lower nitrogen-oxide emissions. However, when driven in on-road conditions, the vehicles switched to ‘mode 2’ and produced higher emissions. Volkswagen has appealed this penalty
• B.A.R Group Pty Ltd (BAR Group) paid $12 600 in penalties after the ACCC issued it with an infringement notice for allegedly misleading consumers about the running power of a portable generator. BAR Group advertised on its website that its 123 G8100-HELT portable generator was capable of achieving a running power of 6 kilowatt (kW). We allege that the generator was only capable of achieving a running power of 6 kW for a short time, not continuously for several hours
• CLA Trading Pty Ltd (trading as Europcar) paid $350 000 in penalties for charging excessive credit and debit card payment surcharges in breach of the CCA. Europcar admitted that it charged Visa and Mastercard credit card users fees that were higher than its costs to accept payments from those credit cards. It also admitted to charging excessive surcharges on Visa and Mastercard debit cards
• Flight Centre Travel Group Limited paid $252 000 in penalties after the ACCC issued two infringement notices for alleged misleading advertisements promoting holiday vouchers during the 2018 Christmas and 2019 Easter periods
• four furniture retailers each paid a penalty of $12 600 after the ACCC issued each of them with an infringement notice following an investigation of the industry’s use of ‘was/now’ price comparisons in advertising. Plush—Think Sofas Pty Ltd, Koala & Tree Pty Ltd (trading as Koala Living), ESR Group Holdings Pty Ltd (trading as Early Settler) and Oz Design Furniture Pty Ltd each received an infringement notice
• we instituted proceedings against Medibank Private Limited (trading as ahm Health Insurance) alleging that it made false or misleading representations about benefits covered by its health insurance policies. We alleged that Medibank falsely represented to members with ahm ‘lite’ or ‘boost’ policies who were making claims or enquiries that they were not entitled to cover for joint investigations or reconstruction procedures, when in fact their policies covered these procedures
• Novartis Consumer Health Australasia (Novartis) and GlaxoSmithKline Consumer Health Australia Pty Ltd (GSK) were ordered to pay $4.5 million in penalties for making false and misleading representations in the marketing of Voltaren Osteo Gel and Voltaren Emulgel pain relief products. Novartis and GSK earlier admitted to having marketed Osteo Gel as being specifically formulated and more effective than Emulgel in treating osteoarthritis-related pain and inflammation, even though both had the same active ingredients
• we instituted proceedings against Oscar Wylee Pty Ltd for alleged misleading or deceptive conduct and making false or misleading representations about its charitable donations and affiliations. We allege that Oscar Wylee made representations on its website, on social media, in emails and in its stores that every time a consumer bought a pair of glasses from Oscar Wylee it would donate a pair of glasses to someone in need. However, despite selling over 320 000 pairs of glasses during the period, Oscar Wylee only donated around 3000 pairs of glasses
• Outdoor Supacentre Pty Ltd (trading as 4WD Supacentre) paid $63 000 in penalties after the ACCC issued it with five infringement notices for allegedly misleading consumers about ‘was/now’ price comparisons advertised on its website. The ACCC also accepted a court enforceable undertaking in which 4WD Supacentre made a commitment to not engage in similar conduct
• Queensland Yoghurt Company Pty Ltd paid $12 600 in penalties after the ACCC issued it with an infringement notice for allegedly misleading consumers by omitting gelatine as an ingredient in some of its yoghurt products
• water filter cartridges business Saipol Technologies Pty Ltd provided the ACCC with a court enforceable undertaking acknowledging that it was likely to have engaged in misleading or deceptive conduct and made false or misleading representations regarding its water filter cartridges. Saipol is likely to have misled business customers in promotional material for its ‘C grade’ water filter cartridges by stating that the pore size or micron rating was compliant with a Queensland Health directive issued in 2016 to all relevant water filer providers, which we allege was not the case
• we instituted proceedings against Samsung Electronics Pty Ltd for allegedly making false, misleading and deceptive representations in advertising the water resistance of various ‘Galaxy’ branded mobile phones
• Snap Send Solve Pty Ltd paid $12 600 in penalties after the ACCC issued an infringement notice to the online platform operator for alleged false or misleading advertisements. The Snap Send Solve website and mobile application allow consumers to report local issues such as damaged footpaths and potholes to relevant authorities, including local councils. Snap Send Solve’s promotion of its website and app suggested that consumers could send photos and reports of issues needing to be fixed, such as cracked footpaths, directly to the relevant public authority; however, Snap Send Solve withheld consumers’ photographs from councils and authorities that were not paid subscribers
• STA Travel Pty Ltd was ordered to pay $14 million in penalties after admitting it made false or misleading claims in advertising its MultiFLEX Pass product. STA Travel advertisements included statements that consumers who bought the airfare add-on could change their flights without paying fees or charges. These claims were misleading, as STA often charged consumers hundreds of dollars for changing their flights
• Streamotion Pty Ltd (trading as Kayo Sports) paid a penalty of $12 600 after the ACCC issued
  it with an infringement notice for allegedly misleading consumers about their eligibility for a
  subscription offer
• TEG Live Pty Limited made a commitment to refund over $5 million to about 5000 consumers who bought tickets to watch basketball games featuring the United States of America (USA) men’s national basketball team in August 2019, after providing a court enforceable undertaking to the ACCC. TEG Live promoted two games between the USA and Australian national basketball teams in Melbourne and one game between the USA and Canadian national basketball teams in Sydney. TEG Live admitted it made false or misleading claims about seating at the games held in Melbourne and acknowledged the ACCC’s concerns that it may have breached the ACL by misleading consumers about which USA national basketball team players would be playing, or would be available to play, in the games
• the Federal Court found that Trivago N.V. (Trivago) misled consumers by representing that its website would quickly and easily help users identify the cheapest rates available for a given hotel. Trivago used an algorithm that placed significant weight on which online hotel booking site paid Trivago the highest cost-per-click fee in determining its website rankings, and often it did not highlight the cheapest rates for consumers. Trivago has appealed the Federal Court’s judgment
• following engagement with the ACCC, Nike Inc has recently changed its Australian online check-out page so customers are alerted that they may be charged an international transaction fee. The ACCC is concerned that retailers may be engaging in misleading and deceptive conduct where Australian consumers are given the overall impression that the transaction is processed here, when it is actually processed outside of Australia. Businesses should clearly inform consumers when they are likely to be charged an international transaction fee
• the Federal Court ordered Quantum Housing Group Pty Ltd (Quantum) to pay $700 000 in penalties for making false or misleading representations relating to the National Rental Affordability Scheme (NRAS), a government affordable housing initiative. Quantum sent a series of misleading letters and emails to at least 450 investors who had rental dwellings participating in the NRAS scheme, pressuring them to terminate their arrangements with their existing property managers and instead use property managers approved or recommended by Quantum. Quantum failed to tell investors that it had commercial links with the property managers it recommended. The Court also ordered that Quantum’s sole director pay a penalty of $50 000 for being knowingly concerned in the conduct. The ACCC had also alleged that the conduct engaged in by Quantum was unconscionable conduct. However, the Court was not satisfied that the conduct was unconscionable.¹³

In 2019–20 the ACCC commenced the following appeals against court decisions in consumer protection matters:

• We commenced an appeal against the Federal Court’s July 2019 decision to dismiss our case against Woolworths for alleged false or misleading environmental claims made about the biodegradability of its ‘W Select eco’ picnic products. Part of the ACCC’s case was that these biodegradability claims were about future matters and that Woolworths did not have reasonable grounds to make them. We disagree with the trial judge’s finding that the likely performance of Woolworths’ picnic products was not a ‘future matter’ and the Court was therefore not required to consider whether Woolworths had reasonable grounds for making this claim. We believe that the claims made by Woolworths are predictions about what would happen to the products in future and Woolworths is therefore required to have reasonable grounds to make them.
• We commenced an appeal against the Federal Court’s October 2019 decision to dismiss our case against TPG Internet Pty Ltd for alleged false or misleading representations it made about prepayments customers had to make on its prepaid internet, home telephone and mobile plans. We alleged that TPG made representations about prepayments of at least $20 which customers had to pay up-front to cover potential usage outside what was included in their plans. The prepayment was automatically topped up to the original amount, usually $20, when the prepaid balance fell below $10 and was non-refundable even when a customer cancelled their plan. This meant that TPG almost always retained at least $10. The trial judge did not accept the ACCC’s argument that the operation of TPG’s prepayment arrangements was not adequately disclosed to consumers. We believe that the Court made an error in deciding that TPG’s representations about this mandatory prepayment were not false or misleading. As at 30 June 2020 we were awaiting judgment.¹⁴
• We commenced an appeal against the Federal Court’s decision to dismiss part of our case against Kimberly-Clark Australia Pty Ltd (Kimberly-Clark), which relates to claims it made to consumers about its Kleenex Cottonelle ‘flushable’ wipes. We alleged that, in representing its product as ‘flushable’, Kimberly-Clark misled consumers about the suitability of its wipes to be flushed down the toilet. We argued that Kimberly-Clark’s flushable claims should have been found to be misleading because there was evidence of the risk of harm these wipes posed to the sewerage system; and that the trial judge was wrong to require evidence that these particular wipes had caused actual harm. The Full Federal Court dismissed the ACCC’s appeal and found that Kimberly-Clark did not make false and misleading claims that its wipes were flushable. However, we are pleased that our court action has brought attention to this issue. It has made consumers aware that flushing wipes can cause significant blockages to plumbing and sewerage systems, damage to equipment and environmental harm; and that water authorities can be faced with significant costs in removing the ‘fatbergs’—large masses, partially composed of wipes, that collect in and block sewerage systems.

Deliverable 2.2: Enhance the effectiveness of the ACCC’s compliance and enforcement initiatives through partnerships

The ACL is a single set of consumer protection laws that apply nationally and in all states and territories. The ACL operates under a ‘one law, multiple regulator’ model. It is jointly administered by the ACCC and state and territory consumer regulators.

Because the ACL is applied nationally, the ACCC is involved in partnerships to ensure that the laws are consistently coordinated and enforced in Australia and that Australian consumer law regulators can work collectively on broader issues.

We work with other government agencies (such as Treasury, ASIC and state and territory consumer protection agencies) as well as consumer groups, industry associations and businesses.

We also work with regional and international partners to develop and promote effective competition and consumer protection regimes around the globe.

This year under deliverable 2.2 we supported our priority areas by:

• partnering with specific Australian organisations to advance our priorities
• engaging with overseas agencies and regulators
• contributing to legislative development in Australia and liaising with government, including parliamentary committees.

We enhance the effectiveness of our compliance and enforcement initiatives by working with Australian businesses, industry associations and consumer groups to promote awareness of the ACL. We also engage with specific stakeholders, including peak industry associations, to promote industry-wide compliance with the ACL.

Much of our coordinated work has been carried out through inter-agency and other committees through the Council of Australian Governments (COAG) framework and National Cabinet.¹⁵

We participate in the Competition and Consumer Committee of the Law Council of Australia. The Law Council is the peak national representative body of the Australian legal profession, and the Competition and Consumer Committee is a forum for discussing legal developments, policy issues and law reform. We report on ACCC activities to each committee meeting, speak at the annual conference, and engage in topic-specific consultations.

The COAG Forum on Consumer Affairs¹⁶ (CAF) consists of all the Commonwealth, state and territory and New Zealand ministers responsible for fair trading and consumer protection laws. CAF’s role is to consider consumer affairs and fair trading matters of national significance and, where possible, to develop a consistent approach to addressing these issues. CAF ministers meet at least once a year. Western Australia is the current chairing jurisdiction for CAF.

National fair trading and consumer protection issues are, in practice, progressed by CAF’s subcommittee Consumer Affairs Australia New Zealand (CAANZ) and its advisory committees and operational groups.

ACCC compliance and enforcement initiatives are enriched by our partnerships with consumer groups and industry representatives. The ACCC hosts and participates in a wide range of consultative committees and forums to encourage discussion around business, consumer and regulatory issues relevant to our work. Details of the committees are at Consultative committees.

The ACCC recognises the benefits that efficient regional and international markets deliver to Australian consumers and businesses. This is particularly important in a global economy.

To achieve our aims under our priority areas, we work through our regional and international partnerships by:

• engaging and sharing information with overseas regulators
• helping to combat anti-competitive conduct in our region
• cooperating with international investigations and proceedings.

We have actively participated in global forums to share consumer product safety information and better practices. This helps ensure the proper functioning of Australia’s regulatory framework. This has included supporting the United Nations Conference on Trade and Development (UNCTAD) consumer product safety work through participation in ad hoc expert meetings and an informal steering group.

ACCC employees are also mentors to staff of overseas competition agencies in our region, and they engage in capacity development work with these agencies. This involves advising and equipping emerging competition authorities to help combat anti-competitive conduct.

A significant aspect of our regional engagement is the Competition Law Implementation Program (CLIP). Under this program the ACCC, in partnership with the Department of Foreign Affairs and Trade and the Association of Southeast Asian Nations (ASEAN), delivers a multi-year, demand-driven program of capacity-building activities for our newer competition law enforcement counterparts in ASEAN. The ACCC works with counterparts to build their capacity to enforce competition laws through projects that factor in local economic, political, legal and social conditions.

Full details of our regional engagement and participation are in our quarterly report, ACCCount, available on our website.

Since 2014 the ACCC has been funded under the ASEAN–Australia–New Zealand Free Trade Area (AANZFTA) Economic Cooperation Support Programme to implement CLIP. Through CLIP we deliver targeted assistance to ASEAN Member States, supporting them as they develop national competition laws, implementing rules, institutions and procedures for their effective Implementation. Through CLIP the ACCC is accepted as a trusted and reliable partner by the region’s competition authorities.

This year we continued to lead an intensive program of CLIP capacity-building activities for ASEAN officials, including:

• conducting practical training workshops on remedies for competition law infringements and on drafting market studies
• delivering a regional workshop in Indonesia for competition and energy sector regulators from across ASEAN, to strengthen understanding, build networks and consider issues of overlapping jurisdiction
• bringing competition commissioners from across ASEAN, New Zealand and Australia together, for the first time, to discuss strategies for strengthening competition law institutions, agency leadership, decision-making and regional partnerships
• placing an ACCC officer in the Cambodian Ministry of Commerce to increase knowledge of competition policy and law and equip officials with the capacity to advocate for and enforce a new law
• launching two additional e-learning modules on CLIP Academy—an online learning management system with practical training modules for competition agency employees
• publishing a Toolkit for senior competition investigators to support the effective building and managing of investigation teams in ASEAN competition agencies
• seconding six ASEAN officials to the ACCC for 10-week work and study placements and an additional two secondees to the NZCC. A total of 23 secondees have been hosted by the ACCC since 2016, supported by CLIP
• attending the 8th ASEAN Competition Conference in Cambodia, where ASEAN competition agencies, business representatives and development partners shared practices and perspectives on a range of competition issues, including cartel enforcement, international cooperation and issues important to young competition agencies.

This year the ACCC expanded its engagement with ASEAN to also include cooperation on consumer protection. As lead implementer of the Agreement Establishing the AANZFTA Consumer Protection Scoping Project, the ACCC partnered with consumer law experts from ASEAN, Australia and New Zealand to undertake research and analysis and develop a forward proposal for building cooperation on consumer law implementation that can support strengthened outcomes under the AANZFTA agreement chapter on competition.

For the Consumer Protection Scoping Project, the ACCC hosted a very successful study visit for over 40 ASEAN officials in Sydney in September 2019. Officials were able to exchange experience and establish new connections among regional peers. The project confirmed the growing appetite for technical cooperation among regulators in our region, and the ACCC aims to continue this important work into the future.

The cooperative relationships we are developing in South-East Asia through this work are a vital part of our international engagement. The long-term cooperation that is developing now will be the platform from which future cross-border enforcement cooperation will grow.

The ACCC and AER continue to work with the Organisation for Economic Co-operation and Development (OECD) and other key international bodies, including the International Competition Network (ICN) and the International Consumer Protection Enforcement Network (ICPEN), to address existing and emerging competition and consumer protection challenges and promote ACCC priorities. The ACCC and AER’s international engagement strategy supports the effective performance of our functions by:

• fostering cooperation with international counterparts to improve outcomes in matters involving extraterritorial evidence or conduct
• encouraging an international regulatory environment that enhances the welfare of Australians
• promoting the ACCC and AER in international forums to influence action supporting agency aims
• educating employees on international practices and developments to assist them in their daily work.

The global COVID-19 pandemic significantly impacted the ACCC’s international engagement activities. A number of key global events were postponed, cancelled or moved to alternative forms of delivery (for example, online platforms). In addition, the ACCC worked with counterpart agencies around the world to understand the different measures adopted in response to COVID-19 and to share experiences and best practices in relation to upholding competition and ensuring consumer protection during the pandemic.

Sharing Australian information about investigations and experience in best practice facilitates international enforcement, develops the capacity of counterpart agencies and strengthens relationships. Information we receive from other regulators helps us to stay abreast of international best practice and increases the efficiency and effectiveness of our merger and enforcement investigations.

An increasing number of cross-border transactions and conduct occur globally. Many of these require review by the ACCC. We regularly engage and exchange information with other regulators internationally on investigations and merger assessments.

In 2019–20 we:

• made and received requests for information from international competition, consumer protection and regulatory counterpart agencies from across the world
• prepared reports and made presentations on Australian competition, consumer and regulatory law developments at many international events.

Continuing our work with international regulators on digital platforms, we:

• engaged with counterparts in Japan and New Zealand to discuss competition in digital markets and the development of new legislation relating to digital platforms
• engaged with a number of European regulators and bodies, including the Norwegian Consumer Commission, the Autorite de la concurrence, the Bundeskartellant, the Italian Competition Authority, DG Connect, the European Commission, the Irish Data Protection Commission, the United Kingdom (UK) Information Commissioner’s Office, the French Data Protection Commission and the European Consumer Organisation (BEUC) on digital issues
• continued to work with both the United States (US) Department of Justice and Federal Trade Commission and Canadian authorities on digital issues.

We regularly facilitated and participated in important international events and secondments. Some highlights from 2019–20 were:

• completing a one-year secondment to the UK Office of Gas and Electricity Markets
• seconding an employee member to the United States Federal Trade Commission to work on digital issues
• attending the American Bar Association International Cartel Workshop in San Francisco, United States of America (USA), in February 2020
• attending the G20 International Conference on Consumer Policy in Tokushima, Japan
• attending the Fordham Competition Law Institute 46th Annual Conference on International Antitrust Law and Policy and Antitrust Economics Workshop in New York, USA
• attending the UNCTAD Intergovernmental Group of Experts on Competition Law and Policy conference in Geneva, Switzerland
• attending the Asia-Pacific Economic Cooperation (APEC) Consumer Protection in Digital Trade Conference in Puerto Varas, Chile
• attending the ICPEN 2019 Best Practices Workshop in Cartagena, Colombia
• hosting Isabelle de Silva, head of the French Competition Authority, during her visit to Australia to attend the ICN Merger Workshop conducted in Melbourne by the ACCC in February 2020
• delivering a Merger Review in ASEAN workshop in Melbourne in February 2020 to build capacity among regional competition officials to effectively address anti-competitive mergers and acquisitions.

The ACCC collaborates with international counterparts through forums such as the ICN. The ICN provides competition authorities with a specialised yet informal venue for maintaining regular contacts and addressing practical competition concerns. The ACCC is a member of the ICN Steering Group and is the ICN’s Horizontal Coordinator.

Our work with the ICN in 2019–20 included actively participating in:

• the ICN Merger Workshop, which the ACCC hosted in Melbourne in February 2020
• the ICN Cartel Workshop in Foz do Iguaçu, Brazil
• the ICN Unilateral Conduct Workshop in Mexico City
• the ICN Bridging Project as a Steering Group member assisting young and small competition agencies
• the ICN’s project on competition law enforcement at the intersection between competition, consumer protection and privacy, as co-chair
• the ICN’s discussions on competition law enforcement during and after the COVID-19 pandemic.

We continued to provide input to the OECD through a variety of forums. We also work with the OECD to improve regulatory practice and policy (for more information, see Improving regulatory practices).

In 2019–20 we:

• attended meetings of the OECD Network of Economic Regulators and Regulatory Policy Committee in Paris, France
• attended the OECD Korea Policy Centre Workshop on Vertical Restraints in Ulaanbaatar, Mongolia
• continued to chair the OECD Working Party on Consumer Product Safety, the only international forum for consumer product safety regulators to discuss, plan and coordinate consumer product safety issues and initiatives
• collaborated with the OECD and the European Commission to co-lead the 2019 OECD global awareness campaign on product recalls, which ran from 21 to 25 October 2019. Around 20 international jurisdictions actively participated in the campaign
• participated in three staff-level secondments to the OECD relating to consumer product safety issues and competition
• coordinated the Australian Government’s response to the OECD questionnaire on the impact of the Internet of Things on consumer product safety
• attended the OECD Working Party on Consumer Product Safety 19th meeting
• attended the OECD Committee on Consumer Policy 98th meeting
• attended the OECD Competition Committee and Global Forum on Competition
• presented at workshops hosted by the OECD Korea Policy Centre in Tokyo, Japan, and Seoul, South Korea
• presented several sessions at the OECD Competition Open Day in Paris, France
• responded to the 2019 OECD/ICN Survey on International Enforcement Co-operation
• presented the ACCC’s experience to the online Roundtable on Competition Policy in the Time of COVID-19.

ICPEN comprises consumer protection authorities from over 60 countries. Its main objective is to protect consumers’ economic interests around the world, share information about cross-border commercial activities that may affect consumer welfare, and encourage global cooperation among law enforcement agencies.

This year we continued our long engagement with ICPEN, presenting at conferences, co-chairing the Intelligence Steering Group, and as a member of the network’s Advisory Group and as the ICPEN Webmaster.

Other work we did for ICPEN over the year included:

• gathering intelligence on consumer protection priority areas and emerging issues from members and preparing the annual intelligence report
• preparing the annual national activity report
• presenting at the ICPEN Virtual Conference in 2020 as part of the Intelligence Steering Group
• co-leading the ICPEN Project on Digital Platform Tourism and Touristic Services
• sharing the ACCC’s experiences and initiatives taken to protect consumers during the COVID-19 pandemic
• supporting ICPEN’s Fraud Prevention Month initiative, which was focused on education and targeted enforcement action during the COVID-19 pandemic.

UNCTAD is the United Nations body responsible for dealing with development issues, particularly international trade.

The ACCC contributed to UNCTAD’s activities by making available our resources and expertise in competition, consumer protection and utility regulation.

During 2019–20 the ACCC contributed to UNCTAD’s activities by:

• providing information about measures we have taken to continue to promote competition and protect consumers for UNCTAD’s newsletter Competition and consumer protection during COVID-19 crisis: initiatives from around the world
• providing input to an UNCTAD survey about cross-border cartels (to be discussed at the United Nations (UN) Conference to Review All Aspects of the Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices in July 2020)
• providing responses about changes to Australia’s competition law for UNCTAD’s report on implementation of the UN Set of Principles and Rules on Competition
• contributing to a panel discussion at the UNCTAD Intergovernmental Group of Experts on Competition Law and Policy Roundtable on Competition Issues in the Digital Economy.

Section 51(3) of the CCA has been repealed pursuant to the Treasury Laws Amendment (2018 Measures No. 5) Act 2019 (Cth). The repeal of s. 51(3) means that conduct involving intellectual property rights is no longer exempt from certain provisions in Part IV of the CCA.

To assist industry, when the repeal commenced on 13 September 2019 the ACCC released guidelines on the application of Part IV of the CCA to intellectual property.

The Competition and Consumer Amendment (Country of Origin) Act 2017 (Cth) (CoO Amendment Act) amended the definition of ‘substantial transformation’ relevant to making a ‘made in Australia’ claim and using the Australian Made, Australian Grown (AMAG) logo.

Following the change and the Federal Court decision in Nature’s Care Manufacture Pty Ltd v Australian Made Campaign Limited [2018] FCA 1936, the complementary medicines sector made submissions on the use of the AMAG logo. In December 2018 the then Department of Industry, Innovation and Science established a Complementary Medicines Taskforce to examine industry’s concerns. This was followed by a regulatory reform process ‘Clarifying Eligibility for Origin Claims in the Complementary Medicines Sector’ in 2019.

The ACCC made a submission in response to the CRIS process, submitting that we considered the maintenance of the status quo was most likely to give effect to the policy considerations that led to the implementation of the CoO Amendment Act. The submission also noted that the other options presented created alternative or additional criteria for making a ‘made in Australia’ claim. This had the potential to confuse consumers and may allow products that have undergone minimal processing in Australia to be labelled as ‘made in Australia’.

Following the regulatory reform process, on 18 December 2019 the Competition and Consumer Amendment (Australian-made Complementary Medicines) Regulations 2019 commenced. The regulations specify when complementary medicines are ‘substantially transformed’ and therefore may be labelled ‘made in Australia’ and/or use the AMAG logo.

Under the regulations, a complementary medicine is ‘substantially transformed’ in Australia if certain manufacturing processes take place at Therapeutic Goods Administration (TGA) licensed manufacturing facilities in Australia. Processes such as encapsulating raw materials or pressing them into a tablet at a TGA-licensed facility in Australia would be likely to satisfy the regulations. It remains voluntary to make country of origin claims on complementary medicines.

The government has described the regulations as an interim measure and is preparing amendments to the ACL. The ACL amendments will require manufacturers of complementary medicines who choose to make country of origin claims to include a bar chart specifying the proportion of Australian ingredients in the products.

In November 2018 Treasury announced a review of the extension of the UCT protections in the ACL relating to small business contracts. The review was a requirement of the 2016 UCT legislation.

The ACCC made a submission to the review on 21 December 2018. Our principal recommendation was that inclusion of a UCT in a standard form contract should be an ACL contravention and subject to civil pecuniary penalties (along with other remedial orders commonly available to a court for ACL contraventions).

On 13 December 2019 Treasury released a CRIS on enhancements to unfair contract term protections. The CRIS sought stakeholder feedback on the issues identified by the government’s UCT review, including whether any enhanced UCT protections for small business contracts should also be extended to consumer and insurance contracts to ensure consistency in the operation of the protections.

On 23 March 2020 the ACCC made a submission in response to the CRIS. Again, we recommended that the inclusion of a UCT in a standard form contract should be a contravention of the ACL and subject to civil pecuniary penalties and other remedies. The ACCC considers that this should be the case for standard form contracts with consumers and with small business. Our view is that prohibiting UCTs will provide an important incentive for compliance.

In our submission we made other recommendations that will clarify the application and operation of the UCT regime. For example, we suggested:

• replacing the definition of a small business based on headcount with one based on an annual turnover of less than $10 million
• removing the value threshold for small business contracts to be covered by the UCT regime
• making ‘repeat usage’ a mandatory factor for a court to consider in determining whether a contract is a standard form contract.

The ACCC continues to advocate for changes to the UCT laws (for both small business and consumers), including our key position that the inclusion of a UCT in a standard form contract should be an ACL contravention and subject to penalties for non-compliance.

On 24 December 2019 the government issued an exposure draft of an Electronic Ticket Resale Service Information Standard for consultation.

On 18 February 2020 the ACCC provided a submission in response, supporting the draft information standard but proposing some minor amendments.

The purpose of the draft information standard is to require ticket resale websites to disclose the face value of tickets and to disclose the fact that the website is not a primary ticket seller. The draft information standard implements an August 2017 decision of the Consumer Affairs Forum ministers.

The government is proposing regulatory intervention in the automotive industry in relation to two areas examined in the ACCC’s December 2017 report New car retailing industry: a market study by the ACCC.

The two regulatory interventions proposed are:

• a mandatory scheme under the CCA to specify minimum standards of conduct for parties sharing and accessing vehicle service and repair information. The ACCC has previously consulted with the government on this proposal
• interventions to address the significant imbalance of bargaining power between dealers and car manufacturers, such as regulations governing the franchise relationships between these parties.

In March 2019 Treasury commenced consultation on a proposed mandatory code under the CCA to specify minimum standards of conduct for parties sharing and accessing vehicle service and repair information. The ACCC made a submission and participated in the consultation process.

In October 2019 Treasury issued a consultation update advising the government’s position on a number of issues following its consultation. Among other things, it advised that, in light of feedback, it would not implement the scheme through a mandatory code of conduct under the CCA but would instead progress the scheme using primary legislation. The ACCC will have enforcement responsibility for the scheme.

The ACCC continues to participate in Treasury’s consultations.

In December 2018 the then Department of Industry, Innovation and Science released a Regulation Impact Statement (RIS) discussing possible regulatory options to govern franchise relationships between car manufacturers and new car dealers. The ACCC participated in the consultation process.

On 14 February 2020 the Department of Industry, Science, Energy and Resources released an exposure draft of the Competition and Consumer (Industry Codes—Franchising) Amendment (New Vehicle Dealership Agreements) Regulations 2020 for new vehicle dealership agreements. It proposed that the regulations would be implemented as an amendment to the Franchising Code of Conduct. The stated purpose of the regulations is to address the impacts of potential power imbalances between car manufacturers as franchisors and new car dealers as franchisees.

The ACCC provided a submission in response to the exposure draft.

The regulations were subsequently made and commenced on 1 June 2020. The key reforms:

• require franchisors and dealers to provide at least 12 months’ notice of whether or not they intend to extend, renew or enter into a new agreement where the original agreement is for 12 months or longer
• require franchisors to provide more detail about any significant capital expenditure that will be required and the circumstances under which the franchisee is likely to recoup the expenditure
• allow for multi-franchisee dispute resolution.

On 15 November 2019 the Australian Law Reform Commission (ALRC) released a discussion paper on reforms to the Australian corporate criminal responsibility regime. A number of the 23 proposals in the discussion paper would affect the enforcement and compliance work of the ACCC.

In January 2020 the ACCC made a submission that supported the importance of retaining a flexible regulatory toolkit including our infringement notice powers. Our submission also supported a strengthened corporate criminal responsibility regime and improved corporate prosecution processes.

The ALRC’s final report is due in August 2020.

On 28 February 2019 the ACCC made a submission to the government review of the Retail Grocery Industry (Unit Pricing) Code of Conduct. The code was due to lapse on 1 October 2019. Treasury sought submissions on whether it should be remade, either in its current form or with amendments.

On 16 September 2019 the original sunset date for the code was deferred until 1 October 2021 via the Legislation (Deferral of Sunsetting—Trade Practices (Industry Codes—Unit Pricing) Regulations) Certificate 2019. This will give the government further time in which to consider its position on the code following the review. The ACCC will participate further in Treasury’s consultation process when it continues.

On 14 March 2019 the Parliamentary Joint Committee on Corporations and Financial Services released its report Fairness in franchising following its inquiry into the effectiveness of the Franchising Code of Conduct and Oil Code of Conduct.

The committee made a number of recommendations, including that:

• an inter-agency Franchising Taskforce be established to undertake further work in the sector
• the Franchising Taskforce consider amendments to the CCA, including significantly increasing the quantum of penalties available for breaches of the Franchising Code of Conduct and Oil Code of Conduct to ensure that penalties are a meaningful deterrent and that they at least reflect the penalties currently available under the ACL.

A number of recommendations in the report align with concerns that the ACCC raised in our submission to the inquiry.

On 10 April 2019 the government established the inter-agency Franchising Taskforce, comprising representatives from Treasury, the then Department of Education, Skills and Employment, and the Department of the Prime Minister and Cabinet. The purpose of the taskforce is to examine the feasibility and implementation of the report’s recommendations.

The taskforce consulted on an issues paper from 23 August to 20 September 2019. The ACCC participated in this consultation process.

Based on the feedback received in response to the issues paper, the taskforce released the Franchising Sector Reforms Regulation Impact Statement for consultation between 11 November and 6 December 2019. The RIS sought feedback on possible problems and options for government action in the franchising sector.

The ACCC made a submission in response to the RIS on 10 December 2019. Our submission calls for significant changes to the regulation of the franchising sector. Our concern is that making incremental changes to the Franchising Code of Conduct will not be enough to address the problems that have persisted in this sector. We consider that many of the problems in the sector would be better resolved through implementation of a licensing regime, which includes more effective dispute resolution rather than through ACCC enforcement.

The ACCC’s other recommendations include:

• introducing civil pecuniary penalties for all provisions of the codes and for non-compliance with ACCC notices
• introducing more dispute resolution options in the regulatory framework, including by establishing a single body with the power to make binding decisions and introducing more effective alternative dispute resolution pathways
• merging the Office of the Franchising Mediation Adviser and the Australian Small Business and Family Enterprise Ombudsman to avoid duplication
• taking a more holistic approach to education in the franchising sector by introducing initiatives that enable prospective franchisees to be more informed before they invest in a franchise and that place greater emphasis on financial literacy and business education to better equip franchisees with the knowledge and skills they need to effectively operate a business
• making independent professional advice mandatory for prospective franchisees
• introducing stronger incentives for franchisors to test whether prospective franchisees are suitable for their franchise system
• not introducing the proposed national franchise register
• repealing the Oil Code of Conduct and adding specific fuel retailing provisions to the Franchising Code of Conduct.

The taskforce is currently considering stakeholder responses to the RIS and will then provide advice to the relevant ministers.

Treasury publicly released its CRIS on improving the effectiveness of the consumer product safety system on 8 October 2019. Consultation closed on 30 November 2019. The statement identified inefficiencies in the current system that result in unsafe products being supplied in the market. It canvassed a range of reform options to strengthen product safety interventions—for example, introducing a new safety duty (formerly referred to as a General Safety Provision), a product intervention power and more enforcement powers.

The ACCC supports reforms to strengthen and facilitate a more responsive product safety regime in Australia and to support existing consumer protection provisions in the ACL.

Deliverable 2.3: Identify and address the risk of serious injury and death from safety hazards in consumer products

Consumers expect the products they purchase to be reasonably safe and to work properly. Under the ACL, consumer products are expected to meet the consumer guarantee to be of acceptable quality, including being safe. Banned products cannot be sold. Products or product-related services that are subject to mandatory safety or information standards must comply with those standards before they are offered for sale. However, if unsafe goods are present in the market, suppliers should initiate voluntary recalls to ensure products are effectively removed from supply chains, especially when a safety issue is identified where goods may cause injury to a person.

The ACCC meets regularly with the specialist safety regulators for food, gas and electrical goods, and motor vehicles to discuss safety issues in consumer goods, including recalls, monitored by specialist regulators.

Each calendar year we release a standalone product safety policy setting out the principles we adopt to prioritise and address product safety risks. State and territory ACL regulators have endorsed these as national priorities.

In 2019 our consumer product safety priorities included:

• improving the safety of quad bikes
• ensuring the effectiveness of the compulsory recall of vehicles with Takata airbags
• supporting strategies that help prevent injuries and deaths to children caused by button batteries
• progressing the development of a General Safety Provision and other product safety reforms
• supporting strategies that help prevent injuries and deaths to infants caused by unsafe sleeping products
• improving product safety in the online marketplace, with a focus on improving the safety of products sold on online platforms
• raising awareness of and building capacity to address consumer safety hazards associated with interconnected devices
• continuing to review and update current mandatory safety standards and bans and conduct surveillance
• improving product safety data by progressing the development of a national product safety incidents database.

In 2020 our consumer product safety priorities included:

• finalising the compulsory recall of vehicles with Takata airbags
• pursuing regulatory options to prevent injuries and deaths to children caused by button batteries
• implementing strategies to prevent injuries and deaths to infants caused by sleeping products identified as unsafe
• improving product safety in e-commerce through enhanced compliance commitments from online platforms
• scoping more effective risk controls for potential intervention to prevent injuries and deaths caused by furniture falls, including toppling furniture.

We also continued our work on:

• assessing current and emerging safety hazards
• ensuring that businesses comply with mandatory reporting requirements
• reviewing product safety standards, which set safety requirements for products
• developing product safety compliance strategies.

We will always prioritise product safety issues that have the potential to cause serious harm to consumers.

In 2019–20 our product safety enforcement outcomes included the following:

• Hai Feng International Pty Ltd (trading as Big Red Jacks Tools & Equipment) paid a penalty of $12 600 after the ACCC issued an infringement notice. The notice was issued because we had reasonable grounds to believe that Big Red Jacks had supplied a vehicle jack that did not comply with the consumer product safety standard for vehicle jacks.
• Three corporations, Grays Ecommerce Group Limited, Berwick Motor Group Pty Ltd and HG Innovations Pty Ltd, paid a combined total of $63 000 in penalties after the ACCC issued infringement notices for allegedly selling or advertising vehicles under active recall as part of the Takata compulsory recall. Further details are at Compulsory recall.
• Mercedes-Benz Australia/Pacific Pty Ltd provided the ACCC with a court enforceable undertaking acknowledging that, due to spare parts availability, it had failed to initiate a recall of certain C class and E class vehicles with faulty Takata airbags in accordance with the timeframe required under the Takata compulsory recall. Further details are at Compulsory recall.
• e-scooter rental company Lime Network Pty Ltd (Lime) provided the ACCC with a court enforceable undertaking to address the ACCC’s concerns regarding misrepresentations about the safety of its Generation 2 (Gen 2) model of e‑scooters and to comply with its product safety reporting obligations. The ACCC considered Lime misrepresented that its Gen 2 e-scooters were safe to use when it had not disclosed to consumers that the e-scooters may apply excessive brake force, or locking, on the front wheel, causing it to stop suddenly. The ACCC was also concerned that Lime failed to comply with mandatory injury reporting requirements on at least 50 occasions for injuries arising from Gen 2 e-scooters; and failed to give notice of the firmware updates it applied to the e-scooters to fix the safety issue, as required by product safety laws.

The ACCC applies a proportional approach to product safety. We generate, receive and assess information about product safety issues from diverse sources, including inspections, reports, mandatory reporting, global recalls, media and the health system. We give priority to product safety issues with potential for serious or widespread harm to consumers.

In order to identify and mitigate emerging hazards through our surveillance work in 2019–20 we:

• inspected 12 480 product lines at 1624 retailers to assess compliance with 18 mandatory safety standards
• submitted 235 products for further assessment
• removed 51 unsafe products from the market from surveillance
• generated 29 recalls from ACCC surveillance.

The Consumer Product Safety Branch receives data about unsafe consumer products from various sources, including mandatory injury reports from suppliers and unsafe product reports from the public and other sources.

If a business becomes aware that a product it has supplied has caused serious injury, serious illness or death, it must report this to the ACCC. We rely on timely mandatory reporting to quickly identify product safety issues and assess whether further action is needed.

In 2019–20 we:

• received 3025 mandatory reports
• automatically referred 1310 reports to the food regulators
• assessed 1711 mandatory reports ourselves
• referred 92 reports to other regulators following assessment
• within seven days, conducted a preliminary assessment of 100 per cent of mandatory injury reports.

On average, we have received 2865 reports each year since commencement of the ACL.

Members of the public can also report concerns about potential unsafe products to the ACCC Infocentre. In 2019–20 we received 6911 reports of potentially unsafe products and related enquiries, 902 of which were escalated for hazard analysis and assessment. Each report undergoes an initial risk assessment based on the priority areas and factors outlined in the Product Safety Priorities policy. In 2019–20, 2613 reports were initially assessed. This risk assessment results in some matters being progressed for further work or assessment. Where a supplier is not considered to have adequately addressed the risk, the matter may be escalated for an initial or in-depth investigation to consider what method of intervention may be warranted.

In 2019–20 we:

• completed 83 detailed assessments
• completed 12 initial or in-depth investigations.

Our responses to hazards may include:

• encouraging the voluntary recall of goods (including reassessing the effectiveness of the recall strategy if the goods are already subject to recall)
• recommending a compulsory recall of goods if it appears that suppliers have not taken satisfactory action
• raising awareness or reminding consumers about hazards through social media, the Product Safety Australia website and campaigns
• negotiating voluntary changes to packaging, labelling or product design
• working with industry to encourage safe sourcing and supply
• introducing or reviewing mandatory safety standards and bans
• referring a matter for enforcement consideration.

Voluntary recalls continue to be the main solution that businesses adopt when managing the continuing risks of unsafe consumer products supplied to the market. Voluntary recalls are notified via the Product Safety Australia website. When a recall is notified, we develop a short summary for posting to social media, such as Facebook and Twitter, to bring the recall to the attention of those who may have purchased the products or know of others who did.

Suppliers must advise the Commonwealth minister responsible for product safety matters within two days of commencing voluntary recall action. The ACCC applies a risk-based approach to assessing recall performance and to guide recall monitoring actions.

In 2019–20 we:

• published 633 recall notifications
• monitored 926 recalls. At 30 June 2020, 531 recalls were being monitored
• assessed 2901 progress reports submitted by suppliers
• completed 457 recall effectiveness reviews
• received 121 reports and enquiries relating to recalls that required assessment and response
• completed 26 assessments for recalls that were escalated for further assessment.

The three most successful recall postings on Facebook were:

• a promoted post about the NADI 5-AT airbag inflator voluntary recalls, with a total reach of 1.152 million (1.15 million from promotion and 10 500 organic reach). This post also generated 362 000 reactions
• a post for a recall for Goannatracks Overland Expeditions Pty Ltd of the Trackmaster 37X12.5 R17 131N tyres, which achieved a total reach of 241 200 (all organic). There were 32 800 reactions to this post. This recall was for a specialist tyre used in off-road settings
• a recall for Honda Australia Motorcycle and Power Equipment Pty Ltd for the EU22i Generator, which achieved an organic reach of 75 200 and approximately 5000 reactions.

Case study: Boosting recall returns—the Ozito Portable Electric Blower
A portable electric blower (handheld gardening tool) manufactured by Ozito Pty Ltd and sold nationally through Bunnings Warehouse stores from 2009 was voluntarily recalled in 2015 after its association with consumer injuries and near misses.

In 2019 the ACCC became concerned by a further trickle of consumer incident reports and the appearance of the product on second-hand goods sales platforms. This concern was shared by both Ozito and Bunnings. The ACCC met with Bunnings and Ozito to discuss options to boost consumers’ attention to the recall and increase returns. Following collaboration from the group, an updated recall strategy was implemented. The new strategy included updating the recall notice to acknowledge that consumer injuries had occurred, offering a significant incentive for consumers to return the product, contacting second-hand sellers, and increasing national advertising of the recall and incentive offer.

Soon after commencement of the refreshed campaign the return rate demonstrated a strong upward trend, which is continuing. At the end of the financial year a further 904 products had been returned by consumers.

The ACCC makes recommendations to the Commonwealth minister responsible for consumer product safety about amending or developing product safety regulations to deal with products that have the potential to harm consumers. We consult with relevant stakeholders, including industry groups, consumer groups, technical experts and other government agencies, to consider the impact on business, consumers and government and improve our policy formulation and decision-making.

We periodically review mandatory safety standards and bans for consumer products to ensure that they remain effective in a changing economy and continue to provide the intended safety outcomes for consumers. These reviews are part of our continuing contribution to the Australian Government’s policy objectives, including its regulatory reform agenda.

Continuing to review and update current mandatory safety standards and bans was a product safety priority for the ACCC in 2019.

In 2019–20 we completed three reviews of mandatory safety standards, as outlined in Table 3.14: Mandatory safety standards reviewed 2019–20. We completed fewer reviews of mandatory safety standards than in previous years. This was because the team was modestly resourced and it took time to regain momentum in a number of reviews that had been paused while resources were diverted to higher priority time-sensitive work, such as the Takata recall.

Sometimes a product poses a very high risk of injury to consumers and the issue requires dedicated resources to achieve a decisive and targeted outcome. Quad bike safety is one of these issues. Improving the safety of quad bikes remained a product safety priority in 2019–20.

In 2019–20 the ACCC’s Quad Bike Taskforce completed a two-year safety investigation and released a draft mandatory standard for consultation with industry. After considering responses, we recommended the adoption of a mandatory safety standard for all new and imported second-hand quad bikes sold in Australia.

Based on this recommendation, in October 2019 the Assistant Treasurer announced that a new safety standard for quad bikes would be introduced under the ACL. The Consumer Goods (Quad Bikes) Safety Standard 2019 came into effect on 11 October 2019. It aims to reduce the likelihood of quad bike related deaths and injuries by requiring quad bikes to be supplied with enhanced stability, rollover protection and improved information for potential purchasers. The requirements are being introduced over two transition periods and will become mandatory on either 11 October 2020 or 11 October 2021.

By 11 October 2020 all new and second-hand imported quad bikes must:

• meet the specified requirements of the US standard for quad bikes, ANSI/SVIA 1-2017, or the European standard for quad bikes, EN 15997:2011
• provide an affixed rollover warning label; information in the owner’s manual or handbook setting out the risk of rollover; and a hang tag (at point of sale) stating the angle at which the quad bike tips onto two wheels (using information from a lateral static stability test).

By 11 October 2021 all new and second-hand imported general use quad bikes are required to meet minimum stability requirements for lateral roll stability (a minimum tilt table ratio (TTR) of 0.55) and front and rear longitudinal pitch stability (a minimum TTR of 0.8). They must also be fitted with an operator protection device or have one integrated into the design by this date.

Since the introduction of the standard, we have been engaging with industry to encourage quad bike manufacturers and suppliers to comply with the standard as early as practicable to deliver the safety benefits to their customers. We will continue to do this throughout the transition periods.

We have published quad bike safety guidance material for manufacturers, dealers and consumers on the Product Safety Australia website.

We will continue to encourage consumers to take additional safety measures that complement the safety standard—for example, wearing helmets, never allowing passengers to ride single-seat quad bikes, and preventing children from riding adult-sized quad bikes.

Button battery safety is a key focus of the ACCC’s product safety priorities for 2020, as button batteries pose a serious safety risk. Three children in Australia have died from injuries sustained after swallowing a button battery, and many more have been hospitalised with serious long-term injuries.

In 2019–20 we:

• established a taskforce to investigate button battery safety and consider the options for implementing a mandatory safety and information standard for button batteries and products containing button batteries under the ACL. The taskforce has been engaging with relevant international regulators, analysing existing national and international standards, conducting targeted consultation and reviewing stakeholder submissions
• released an issues paper on button battery safety in August 2019. The issues paper invited responses from interested stakeholders on the perceived safety risks, the effectiveness of the voluntary Industry Code for Consumer Goods that Contain Button Batteries, consumer information, and the button battery market in Australia
• released the consultation paper consultation.accc.gov.au/product-safety/button-batterysafety-consultation-paper on 19 March 2020. The consultation paper identified the proposed regulatory options available under the ACL to address the hazard of button batteries. This set out the ACCC’s preferred option, which involves making a mandatory safety and information standard that includes a combination of requirements for secure battery compartments and child-resistant packaging, as well as the provision of warnings and information. Submissions on the consultation paper will inform the ACCC’s development of a final recommendation, which will be provided to the minister in 2020. For more information please refer to ACCCount, 1 January to 31 March 2020, page 26
• conducted a wide range of stakeholder consultation activities to discuss issues raised in submissions to the consultation paper and further inform the development of a final recommendation. We are expecting to make our final recommendation to the minister before the end of 2020.

Improving product safety in the online marketplace continued to be an ACCC product safety priority in 2019–20. Online shopping, or e-commerce, is a growing market, driven by convenience and competitive prices. While it offers consumers many benefits, rapid growth in this area means it is likely that non-compliance with product safety regulations will occur.

In 2019–20 we:

• progressed several elements of the Online Compliance Initiative—a strategy aimed at strengthening and improving product safety compliance in the online marketplace. This continuing initiative takes a market-wide approach to compliance at both domestic and cross-border levels, targeting consumers, online suppliers, platforms and international retailers and regulators
• released a series of translated resources to help online suppliers, particularly those offshore, to comply with their ACL product safety obligations
• conducted surveillance that identified an unacceptable number of non-compliant products for sale online
• continued to engage with online platforms to establish formal commitments that strengthen their product safety policies and processes
• facilitated an online marketplace compliance community of practice forum with state-level
  product safety regulators
• worked with platforms to distribute product safety information to consumers and sellers regarding banned and non-compliant goods being sold online, including small high-powered magnets, quad bikes, children’s toys, vehicle jacks, decorative alcohol-fuelled devices, portable swimming pools and projectile toys.

Finalising the compulsory recall of Takata airbags is an ACCC product safety priority for 2020. The Takata airbag recall is the world’s largest automotive recall, affecting an estimated 100 million vehicles globally. It is the most significant recall in Australian history—it affects over four million Takata airbag inflators and involves more than three million vehicle recalls. Worldwide there have been at least 29 deaths and more than 330 serious injuries reported as associated with misdeploying defective Takata airbag inflators. One death and one serious injury resulting from misdeployed Takata airbag inflators have been reported in Australia.

The Consumer Goods (Motor Vehicles with Affected Takata Airbag Inflators and Specified Spare Parts) Recall Notice 2018 requires companies that supplied vehicles with defective Takata airbags in Australia to recall and replace affected airbags by 31 December 2020 (unless on application an alternative date is approved by the ACCC).

In 2019–20 we:

• continued to progress the compulsory recall, which has been effective in significantly reducing the number of affected airbags on Australian roads. As at 30 June 2020 around 3.66 million airbags (89.2 per cent) had been replaced in 2.68 million vehicles (87.8 per cent), leaving around 180 869 airbags (4.4 per cent) in 155 351 vehicles remaining for repair. This excludes 262 725 airbags (6.4 per cent) in 218 393 vehicles (7.1 per cent) identified by suppliers as written off, scrapped, stolen or modified and unable to have the airbag replaced
• implemented an outreach program targeting both urban and regional communities with recall response rates that fall below the national average. We continue to engage with ‘trusted messengers’ within communities and ask them to help by raising awareness through their existing networks. Following face-to-face meetings with around 70 different community-based partners, we are now providing information and electronic materials for distribution to key intermediaries, which include local councils, police, libraries and various community organisations
• in targeting specific areas with low recall response rates for outreach programs, the ACCC partnered with the Australian National University, which conducted research that included identifying areas and postcodes with the lowest consumer response rates in each state and territory
• continued to work through the Takata Interagency Group with state and territory fair trading agencies, vehicle registration authorities and other interested stakeholders on initiatives to increase the effectiveness of the recall. This included registration sanctions by state and territory vehicle registration authorities (please see ACCCount, 1 January to 31 March 2020, page 23, for more information)
• conducted a pilot program of industry surveillance and outreach to raise awareness and take action to address non-compliance within the industry. The feedback from this program was used to inform an ACL regulator national strategy that commenced in November 2019 and as
  due to be completed by 30 June 2020 (noting that the COVID-19 pandemic has changed the on-site surveillance component of the program and we may seek to extend the program)
• continued our engagement with the Federal Chamber of Automotive Industries (FCAI) as part of its joint communications campaign on behalf of a number of vehicle manufacturers. The FCAI reported that as at 30 June 2020 its website’s look-up tool (www.IsMyAirbagSafe.com.au) had checked more than 10.85 million vehicles, of which over 1.79 million vehicles were identified as affected by the recall.

Case study: Takata enforcement action
In December 2019 the ACCC issued infringement notices to Grays Ecommerce Group Limited (Grays), Berwick Motor Group Pty Ltd (BMG) and HG Innovations Pty Ltd (HG Innovations) for allegedly selling or advertising vehicles under active recall as part of the Takata compulsory recall. This was the first enforcement action taken in relation to the compulsory recall. Penalties totalling $63 000 were paid in January 2020.

In February 2020 the ACCC also accepted a court enforceable undertaking from Mercedes-Benz Australia/Pacific Pty Ltd (Mercedes-Benz), after Mercedes-Benz acknowledged that, because spare parts were not available, it had failed to initiate a recall of certain C class and E class vehicles with faulty Takata airbags in accordance with the timeframe required under the Takata compulsory recall.

For more information see ACCCount, 1 January to 31 March 2020, pages 16–17.

At the end of 2019 misdeployment incidents relating to Takata airbags with NADIs using 5-aminotetrazole (NADI 5-AT) manufactured between May 1995 and August 1999 were identified. These airbags are not part of the compulsory Takata recall. They are installed in around 78 000 vehicles in Australia and pose serious safety risks. For more information see ACCCount, 1 January to 31 March 2020, pages 23–24.

To address this emerging issue, in 2019–20 we:

• issued warnings to consumers about the new critical safety risk
• worked in collaboration with the Department of Infrastructure, Transport, Regional Development and Communications to negotiate voluntary recalls with Audi, BMW, Ford, Honda, Mazda, Mitsubishi, Suzuki and Toyota. Audi, Ford, Mitsubishi and Suzuki are offering to buy back vehicles at current market value (these are the first buyback recalls of road-registrable vehicles in Australia). Mazda is offering a buyback or replacement airbag. BMW, Honda and Toyota are offering a replacement airbag only. All manufacturers are offering alternative transportation for affected consumers until the buyback process is completed or replacement airbags are available
• assisted the Department of Infrastructure, Transport, Regional Development and Communications in monitoring the voluntary recalls of affected vehicles
• developed trigger points in consultation with the Department of Infrastructure, Transport, Regional Development and Communications for the escalation of issues to the ACCC for advice, including whether the use of compulsory recall powers is appropriate.

Deliverable 2.4: Support a vibrant small business sector

The ACCC helps to ensure that small businesses understand and comply with their obligations. We encourage them to exercise their rights under the CCA as the customers of larger suppliers. Our aim is to promote a competitive and fair operating environment for small business and, importantly, ensure small businesses understand how the legislation can help them.

In 2019 and 2020 the ACCC continued to prioritise ensuring small businesses receive the protections of industry codes of conduct, including the Franchising Code of Conduct, as well as the new UCT laws.

To support the priority, we:

• enforced provisions of the ACL that relate to small business
• provided information, education and services to small businesses
• developed partnerships to help us better engage with and inform small businesses
• enforced and encouraged compliance with codes of conduct
• authorised collective bargaining in certain circumstances in the public interest.

Our Agriculture Unit undertook:

• engagement with a range of industry stakeholders, including farmers and other small agricultural businesses
• industry engagement and compliance work on the implementation of the mandatory Dairy Code of Conduct
• examination of potential competition and consumer issues in the agricultural machinery industry
• investigations and enforcement action in the agriculture sector, with a focus on addressing the inherent imbalance of power that exists between processors and their farmer suppliers.

We are responsible for promoting and enforcing compliance with seven mandatory prescribed industry codes:

• the Franchising Code of Conduct
• the Horticulture Code of Conduct
• the Oil Code of Conduct
• the Port Terminal Access (Bulk Wheat) Code of Conduct
• the Sugar Code of Conduct
• the Retail Electricity Code of Conduct (see Essential services)
• the Unit Pricing Code.

We are also responsible for one voluntary prescribed industry code: the Food and Grocery Code of Conduct.

For more information on the codes, see the Industry codes page on our website.

We use a structured process to actively assess reports of misconduct that we receive in relation to industry codes, and we escalate matters for investigation where appropriate.

Ensuring that small businesses receive the protections of the competition and consumer laws, with a focus on the Franchising Code of Conduct, is an ACCC Compliance and Enforcement Priority for 2020.

In 2019–20:

• following an appeal by Ultra Tune Australia Pty Ltd, the Full Federal Court confirmed important franchisor obligations while upholding aspects of Ultra Tune’s appeal. The Court confirmed a previous decision by the Federal Court that Ultra Tune had breached the Franchising Code of Conduct but reduced the total penalties imposed against Ultra Tune from $2.6 million to $2 million
• former car wash and detailing franchisor Geowash Pty Ltd was ordered to pay $4.2 million in penalties, including penalties of $1.04 million against Geowash’s director Ms Sanam Ali and $650 000 against franchising manager Charles Cameron. This follows an earlier finding by the Federal Court that Geowash made false or misleading representations and failed to act in good faith in relation to the sale and marketing of its franchises, in contravention of the Franchising Code of Conduct. The Court also found that Geowash acted unconscionably towards franchisees through its charging practices for the establishment and fit-out of its franchising sites. Geowash has since appealed this decision
• Bob Jane Corporation Pty Ltd provided the ACCC with a court enforceable undertaking to comply with its obligations under the Franchising Code of Conduct in relation to renewal and extension of franchising agreements. We were concerned that Bob Jane failed to comply with its obligations under the Franchising Code relating to end of term and renewal of agreements. We were also concerned that Bob Jane had extended the term of certain franchise agreements without first providing required documentation to franchisees and obtaining a written statement that the franchisees had received, read and had an opportunity to understand certain documentation
• General Motors Holden Australia NSC Pty Ltd made a commitment to negotiate with its dealers in good faith about compensation for Holden’s withdrawal from the Australian market, as required under the Franchising Code of Conduct and the ACL. This commitment follows pressure from the ACCC for Holden to agree to extend the deadline for acceptance of its compensation offer and to engage in good faith negotiation with dealers
• the Federal Court made the ex-parte orders sought by the ACCC freezing the assets of franchised courier delivery business Megasave Couriers Australia Pty Ltd (Megasave), its sole director and other entities controlled by him. These orders have since been replaced by an undertaking to the Court by the sole director in broadly similar terms, which remains in place until revoked by the Court. Within 14 days after this, the ACCC instituted proceedings (in the 2020–21 financial year) against Megasave in the Federal Court, alleging that it misled prospective franchisees with false or misleading promises of guaranteed minimum weekly payments and annual income if they purchased a Megasave courier franchise. It is also alleged that Megasave’s sole director was knowingly involved in the conduct.

The ACCC continues to provide education and information to both franchisors and franchisees to enable them to understand and comply with their rights and obligations under the ACL. In 2019–20 we focused on providing information aimed at improving disclosure practices across the franchising sector after compliance checks identified that many franchisors failed to provide adequate information to prospective franchisees in respect to key areas of disclosure, which limited franchisees’ ability to conduct due diligence. As part of this work we:

• published our Disclosure practices in food franchising report, which detailed key findings from compliance checks on 12 franchisors in the food services sector
• published a model disclosure document (also included in The franchisor compliance manual)
• published a Quick guide to a franchise disclosure document
• created our ‘Buying a franchise? Know the risks’ campaign web page, which is available in several languages
• conducted a joint agency webcast with the Australian Small Business and Family Enterprise Ombudsman, ASIC, the ATO and the Fair Work Ombudsman.

In April 2019 the government established an inter-agency Franchising Taskforce to consider the issues raised in the Parliamentary Joint Committee on Corporations and Financial Services report Fairness in franchising and how its recommendations may be implemented. The ACCC has continued to engage with the taskforce.

In 2019–20 we:

• made a submission to the taskforce’s draft Franchising Sector Reforms Regulation Impact Statement
• continued to regularly meet and consult with the taskforce.

For more information see Inquiry into the Franchising Code and Oil Code.

The ACL protects small businesses from unfair terms in standard form contracts. The ACCC provides guidance for both small business and consumers on UCTs and may take enforcement action if necessary, in accordance with our Compliance and Enforcement Policy.

In 2019–20:

• the Federal Court declared that certain terms in contracts between Australia’s largest potato wholesaler, Mitolo Group Pty Ltd, and potato growers were UCTs and therefore void. Further information about the Mitolo proceedings is at Enforcement work in the agriculture sector
• Uber Eats made a commitment to change its contracts with restaurants following an investigation by the ACCC. From at least 2016 Uber Eats’ contract terms made restaurants responsible for the delivery of meal orders even though they had no control over the delivery process once the food left their restaurant. We considered that contract terms that gave Uber Eats the right to refund consumers and deduct that amount from the restaurant even when the problem with the meal may not be the fault of the restaurant were likely to be UCTs within the meaning of the ACL
• 1300 Australia, which sells ‘phonewords’—telephone numbers that also spell words on a keypad—provided the ACCC with a court enforceable undertaking acknowledging that some of the terms in its contracts may have been unfair. It has also undertaken to amend its current and future contracts with small businesses and refund part of termination fees paid by some small business customers
• the ACCC made a submission responding to Treasury’s Consultation Regulation Impact
  Statement on enhancements to UCT protections. Our principal recommendation is that
  the inclusion of a UCT in a standard form contract should be a contravention of the ACL
  and subject to civil pecuniary penalties. This is discussed in more detail at Enhancements to unfair contract term protections. The ACCC also encouraged small business stakeholders such as Small Business and Franchising Consultative Committee members to make submissions.

In 2019–20 the ACCC prioritised competition and consumer issues in the agriculture sector, with a particular focus on the Dairy Inquiry, the Horticulture Code of Conduct, the viticulture industry and UCTs in supply agreements.

For information on other agriculture work undertaken in the period, including our work in relation to the Dairy Code of Conduct and agricultural machinery, see Competition and consumer issues in the agriculture sector. For details on the ACCC’s market studies, including the Wine Grape Market Study, see Agriculture.

In 2019–20:

• we reached an agreement with Coles Group Limited in which it agreed to pay approximately $5.25 million to Norco Co-operative Limited for distribution to its dairy farmer members
• as well as declaring that certain terms in contracts between Mitolo Group Pty Ltd and potato growers were UCTs and therefore void, the Federal Court ordered Mitolo to pay penalties of $240 000 for contraventions of the Horticulture Code of Conduct in relation to 19 contracts with potato growers. The contraventions arose from the failure of the contracts to meet minimum requirements under the code. This was the first court-imposed penalty for a contravention of the new Horticulture Code
• Mitolo also provided the ACCC with a court enforceable undertaking containing a revised form of contract. Mitolo has undertaken to contract with growers on terms no less favourable than the revised contract terms annexed to the undertaking
• we reached agreement with several of Australia’s largest winemakers to change their supply agreements with grape growers after the ACCC raised concerns that the contracts contained terms that were likely to be unfair.

We can approve collective bargaining arrangements—where two or more competing businesses wish to jointly negotiate with a supplier or a customer over terms, conditions and prices—where we are satisfied that the arrangement provides an overall public benefit. Without ACCC approval, these types of arrangements may contravene the CCA.

Potential benefits include sharing the time and cost of negotiating contracts, coordinating ordering and/or delivery, accessing new market opportunities from combining volume, and gaining better access to information.

There can also be benefits for the business with which the group negotiates, such as reduced negotiation costs, more certainty of supply, and savings from aligning transport and distribution.

During 2019−20 we considered 21 collective bargaining proposals under the authorisation and notification provisions of the CCA. The proposals we considered involving small businesses included music licensing, translation services and quarry cartage services.

We are in the process of developing a ‘class exemption’ that will allow small businesses to collectively negotiate in certain circumstances.

Smaller businesses can sometimes be better off negotiating with their customers or suppliers as a group. Working together, they may be able to negotiate more efficiently with larger businesses and achieve better terms and conditions than they can on their own. However, without some form of legal protection, this kind of joint bargaining would be at risk of breaching the CCA.

The class exemption will effectively provide a ‘safe harbour’ so that groups of small businesses can collectively bargain without having to seek the ACCC’s approval, where the relevant eligibility criteria are met.

The proposed collective bargaining class exemption will allow:

• businesses, including agribusinesses, with turnover of less than $10 million to form collective bargaining groups to negotiate on the supply or acquisition of goods or services
• all franchisees to collectively bargain with their franchisor.

This class exemption is in addition to the ACCC’s existing authorisation and notification processes. Businesses can continue to use these processes to obtain ACCC approval for collective bargaining arrangements (for example, if they do not fit within the class exemption eligibility criteria or they are also seeking legal protection for a collective boycott). The main difference is that businesses that fall within the scope of a class exemption get automatic exemption; they will not need to apply to the ACCC as they do with authorisations and notifications.

We can make a class exemption where we are satisfied that the type of conduct covered by the class exemption would be unlikely to substantially lessen competition or would provide an overall public benefit. We consider that certain small business collective bargaining is likely to satisfy these criteria.

Deliverable 2.5: Empower consumers by increasing their awareness of their rights under the Australian Consumer Law

The ACCC’s educative function is central to our role in protecting the interests and safety of consumers, because awareness and information are the tools that empower people to understand and exercise their consumer rights. Our educational and publicity campaigns help consumers to make smart choices even in complex or difficult markets.

To empower consumers by increasing their awareness of their rights, we:

• develop and distribute information materials targeted to particular groups
• publicise our enforcement actions
• conduct public education campaigns on specific issues
• operate the ACCC contact centre (the Infocentre) to respond directly to enquiries and reports on consumer issues and to gather information about current trends to inform our educational work
• gather and analyse intelligence on current trends and emerging issues relating to consumer rights.

In 2019–20 we distributed targeted and general information through our website and Facebook, Twitter and YouTube channels to help consumers. For example:

• traffic on the Product Safety Australia website, which provides a user-friendly single entry point to national, state and territory product safety and recalls information, reached 7 058 926 unique page views in 2019–20
• the Scamwatch website, which is designed to help consumers and small businesses recognise scams and avoid them, as well as providing an avenue for scam reporting, received 3 843 815 visits and 7 639 253 unique page views in 2019–20. The site was updated in April 2020 to improve accessibility and responsiveness on mobile devices
• we published a large range of guidance material for consumers in relation to cancellations and other issues arising from COVID-19 restrictions. More information can be found at Actions taken in response to the COVID-19 pandemic and Empowering consumers through communication—campaigns
• we continued to publish voluntary recalls through social media channels to extend their reach to affected consumers
• we engaged with key consumer and government stakeholders, such as members of the Consumer Consultative Committee and Scams Awareness Network, on campaigns
• we also engaged with a range of private businesses and peak bodies to promote consumer information
• we provided information and updates to consumers and small businesses through our information networks.

We conduct campaigns, including in our broader priority areas, to educate and empower consumers on specific issues, and we put on events to promote and discuss consumer issues with a range of stakeholders.

In 2019–20 we maintained a strong focus on educating consumers about their rights and warning people about the risks of scams and product safety hazards. We delivered a range of targeted and general information campaigns across our three websites (www.accc.gov.au, www.productsafety.gov.au and www.scamwatch.gov.au) and social media channels (Facebook, Twitter, LinkedIn and YouTube). For example:

• responding to identified consumer and business concerns resulting from the COVID-19 pandemic, we published and frequently updated a dedicated page on our website for consumers to find answers to their frequently asked questions about their rights during this period, including changes to services or cancellations caused by COVID-19 restrictions. This included information about travel, event and wedding cancellations, gym memberships and product price increases. This information was communicated widely through a range of mainstream media outlets and through our social media channels
• we engaged with many private businesses and peak bodies to promote consumer rights in relation to issues brought about by the COVID-19 pandemic. In particular, we formed a COVID-19 Taskforce, which worked with travel operators; travel industry bodies; state, territory and federal government agencies; and consumer groups to address a large number of consumer complaints arising from COVID-19-related travel cancellations and advise businesses of their obligations. As a result, a number of large travel operators changed their conduct and provided clearer information and better remedies to consumers
• we notified Australians of more than 600 product recalls, as well as safety information from national, state and territory regulators, through our Product Safety Australia website—a user-friendly single entry point for consumers. Traffic reached 7 058 926 page views in 2019–20. We also promoted recalls through our corporate and product safety social media channels
• we undertook a range of communications through media and our own channels to warn consumers of a new voluntary recall of the potentially deadly Takata NADI 5-AT airbag—a different airbag from the one subject to the existing compulsory recall of Takata airbag inflators. This recall was of particular importance in 2019–20
• we engaged in scams awareness campaigns with key government and consumer stakeholders, including the Scams Awareness Network. We promoted awareness of scams, including those thriving due to the COVID-19 pandemic—for example, superannuation, coronavirus health and puppy scams—through our social media networks and the media. We delivered an information campaign in support of National Scams Awareness Week 2019, which had the theme ‘Too Smart to be Scammed?’ We produced a vox pop style video and shared information widely on social media to alert consumers to the variety of scams to which they could fall victim
• we warned the public to look out for new scams in early 2020 during the widespread Australian bushfires. The ACCC became aware of a variety of fundraising scams at that time. We set up a dedicated phone number for people to use to report bushfire-related scams. The dedicated bushfire-related scam line answered 1128 calls. Our Facebook post on this topic reached 684 199 users and had 41 492 engagements
• as a result of our surveillance activities, we identified the prevalence of unsafe baby walkers available for purchase in Australia (primarily through online retailers). These baby walkers did not comply with the mandatory safety standard. More than 100 children are injured each year in incidents involving baby walkers. We produced a video campaign that was promoted through social media and mainstream media to highlight the dangers of using baby walkers unsafely and showed consumers how to tell if their baby walker was compliant
• in addition to issues-based campaigns, we were involved in various consumer forums, including meetings of the ACCC Consumer Consultative Committee.

For further detail and examples of our targeted campaigns in 2019–20, see:

• Scams
• Working with partners
• Conduct affecting Indigenous Australians
• Product safety in the online marketplace

As well as conducting issue-based campaigns, we use our involvement in various consumer forums to raise awareness about particular aspects of consumer law. In 2019–20 these opportunities included meetings of the ACCC Consumer Consultative Committee.

In 2019–20 we communicated to consumers through:

• 169 Mailchimp newsletters
• 439 Facebook posts
• 433 tweets
• 283 media releases and dozens of interviews
• our websites, which had 9 797 038 unique visits throughout the year.

The ACCC was due to host the National Consumer Congress and the Ruby Hutchison Memorial Lecture in March 2020. These annual events bring together people from the public, private and community sectors. Around 200 people were expected to attend both events.

Due to concerns regarding the spread of COVID-19 and in the interest of the continued health and safety of our stakeholders, the National Consumer Congress was cancelled and the Ruby Hutchison Memorial Lecture was postponed.

The Ruby Hutchison Memorial Lecture, co-hosted by CHOICE, will be rescheduled once COVID-19 restrictions allow and it is deemed safe to do so. The lecture will be delivered by Julian Morrow, co-founder of the satirical media empire The Chaser, the company Giant Dwarf and Executive Producer of the ABC’s The Checkout program.

The Consumer Consultative Committee (CCC) is a forum through which the ACCC and consumer representatives can address consumer protection issues collaboratively. The current members of the CCC are listed on the ACCC website.

The ACCC held four CCC meetings in 2019–20:

• The first meeting of the 2019–20 financial year was held on 20 September 2019. The CCC discussed updates on the Digital Platforms Inquiry report, administrative tribunals and internal dispute resolution.
• The second meeting was held on 22 November 2019. Topics discussed included the right to repair and an update on preparations for the 2020 National Consumer Congress and Ruby Hutchison Memorial Lecture. AER employees also provided members with an update on the Value of Customer Reliability and Retailer Reliability Obligation projects.
• On 17 March 2020 we hosted a meeting between the CCC and the ASIC Consumer Advisory Panel via teleconference (due to COVID-19 restrictions). The CCC members discussed ASIC’s design and distribution obligations, the merits of a possible unfair trading provision and the ACCC’s product safety pledge (see Treasury review of the effectiveness of the consumer product safety system for more information).
• The final meeting of the year was held on 26 June 2020. The CCC discussed the preliminary findings from the Consumer Policy Research Centre’s research on the consumer experience of COVID-19, our COVID-19 work and our debt collection project.

The ACCC Infocentre is the initial contact point for enquiries and reports about competition, consumer, product safety and fair trading issues. These contacts are received by telephone, by letter and through forms on our websites. We triage contacts in line with the priorities and factors outlined in our Compliance and Enforcement Policy. In addition to identifying new issues, contact data is also a valuable source of intelligence. Regular analysis of trends and patterns provides a safety net for complaints assessment and helps to inform our enforcement and compliance priorities. It can also assist current enforcement and compliance activities by providing historical context regarding people, companies or industries of interest.

The reasons for contacting the ACCC are very broad. However, the majority of contacts are:

• reports to Scamwatch about scams
• reports made by consumers seeking information about consumer guarantees
• reports about business conduct that may breach the CCA
• from small business seeking guidance on their rights and responsibilities.

Infocentre officers record information they receive from businesses and consumers in the ACCC database. This data is used throughout the ACCC for investigation, analysis and reporting purposes.

Infocentre officers may refer customers to appropriate services or agencies if their matter is beyond the jurisdiction of the ACCC or another agency or service may be able to provide individual assistance to them.

Scam reports are generally not investigated and are used to support our intelligence gathering and awareness-raising activities. Some reports (where consent is provided) are referred to intermediaries such as financial institutions and/or government and law enforcement agencies.

Our contact statistics for 2019–20 were:

• 312 773 contacts served by telephone and received in writing
• 89 535 web form responses sent (or otherwise completed)
• 572 letter responses made
• 57 235 calls answered.

Our service level statistics for 2019–20 were:

• 28.2 per cent of calls answered within two minutes (the goal set in our Service Charter is to answer 50 per cent of all calls within two minutes). The average wait time for a call to be answered was seven and a half minutes
• 95.6 per cent of written responses sent within 15 working days.

Overall, the number of responses sent (or otherwise completed) has increased by 23 per cent over the past three years.

Scam contacts decreased 15 per cent compared with the previous year, with 28468 fewer contacts received during 2019–20 than in 2018–19.

The COVID-19 pandemic has been a significant driver for the increased number of contacts requiring a response as the ACCC has sought to provide guidance to consumers and small businesses about their rights and obligations during the pandemic. At times, additional emails have also been sent to consumers in order to advise them of changes businesses have made following engagement with our COVID-19 Taskforce.

Other events that resulted in spikes in the numbers of contacts received in 2019–20 included TEG Live’s Australia v USA and USA v Canada basketball games played in August 2019. We received a record 761 contacts in August about this matter, with subsequent contacts taking the total number to 1356. Information about the ACCC’s investigation of TEG Live, including the outcome, is at Conduct involving priority factors and residual work in previous priority areas.

The following analysis of contacts is based on higher level grouping of existing Australian and New Zealand Standard Industrial Classification categories. The 10 most reported industries made up more than 62 per cent of all non-scam contacts to the ACCC over the past year.

Detailed information about the ACCC’s scam complaints and enquiries can be found in our report Targeting scams 2019: a review of scam activity since 2009.

Further analysis of the largest category, ‘Misleading and deceptive conduct and false representations’ (see Table 3.19: Misleading and deceptive conduct and false representations 2019–20), reflects the ACCC’s continued involvement in the Automotive and Electronics and consumer whitegoods industries in addition to the ACCC’s investigative work involving TEG Live, discussed at Conduct involving priority factors and residual work in previous priority areas.

A breakdown of contacts regarding guarantees and warranties (see Table 3.20: Guarantees and warranties 2019–20) shows the large proportion of contacts that relate to the Automotive industry (27 per cent) and Electronics and consumer whitegoods (26 per cent). Key outcomes relating to consumer guarantees are discussed at Consumer guarantees.

The contacts and reports we receive may go through a series of increasingly intensive investigations. We analyse the complaints data to establish trends, identify issues for further inquiry and develop compliance responses.

Figure 3.1: Contacts, investigations and litigation 2019–20

Role and functions

Infrastructure plays a significant role in Australia’s economic and social development and prosperity. The efficient provision and use of infrastructure—its location, availability, quality and pricing—underpins economic growth, productivity and, ultimately, consumer welfare.

Where key infrastructure is provided by only one or a few suppliers, efficient access to that infrastructure may be limited (including through pricing), thereby undermining competition and investment in relevant markets. Appropriate economic regulation of such infrastructure and the efficient provision of access contributes to the efficiency and productivity of the overall economy.

As an economic regulator, the ACCC has a central role in supporting better market outcomes. We undertake a variety of roles across the sectors we regulate, with the extent of our role determined by the nature and scope of the market failure we are seeking to address.

We engage in a range of advocacy activities regarding privatisation, market contestability and strengthening the functioning of markets to improve consumer outcomes.

Sectors where we have this role include telecommunications, petrol, rail, bulk grain export facilities, airports, container stevedoring and postal services.

Our objective is to:

• support the long-term interests of end users by promoting effective upstream and downstream competition and the proper functioning of Australian markets
• facilitate efficient investment in key infrastructure networks and services.

In pursuing this objective, our key functions include:

• regulating access to monopoly infrastructure and services that businesses need to compete in upstream or downstream markets
• regulating access prices where competitive pressures on a supplier are not sufficient to produce efficient prices
• monitoring and reporting on the prices and quality of particular goods and services to inform industry and consumers about the effects of market conditions in newly deregulated and concentrated markets
• enforcing compliance with industry-specific laws for telecommunications and electricity services
• advocating for appropriate regulation of monopoly infrastructure and for reforms to boost competition and efficiency in key sectors of the economy.

We also undertake inquiries and provide advice on a broader range of sectors when directed by the government.

Our deliverables in this area are:

Our monitoring and reporting functions, and the detailed research and analysis underpinning them, position us to address current and emerging issues in markets that play a vital role in the economy. This work also supports our competition advice and advocacy efforts directed at ensuring Australian markets operate within a policy framework that facilitates competition and efficient investment in key infrastructure networks and services.

Priorities

Our infrastructure regulation priorities for 2019–20 were:

• promoting competition at the wholesale and retail levels by providing market information to increase transparency across the supply chain
• delivering network regulation with a continued focus on National Broadband Network (NBN) pricing and performance issues and post-build settings
• progressing regulatory decisions in relation to rail and wheat markets
• monitoring and reporting in relation to highly concentrated, newly deregulated or emerging markets, with a focus on effective consumer messaging and increased emphasis on information to aid consumer choice and switching
• advocating for appropriate regulation of monopoly infrastructure, including in areas where there are efficiency concerns independent of competition concerns.

As we progressed through the first quarter of 2020, the impacts of the COVID-19 pandemic spread to most sectors of the economy, including key infrastructure sectors. This required us to respond quickly to minimise disruption and safeguard consumer outcomes, particularly in relation to telecommunications, fuel and financial services. As the COVID-19 situation developed, we continued to review the timing of our priorities to fast-track those with the most benefit in the new environment and also to relieve pressure on stakeholders where outcomes have been less time critical.

Powers

Our powers and responsibilities to regulate infrastructure arise from several different legislative and administrative frameworks. These include:

• the National Access Regime in Part IIIA of the Competition and Consumer Act 2010 (Cth)(CCA) (rail)
• industry-specific access regimes in the CCA (telecommunications)
• price monitoring directions from the government issued under the CCA (airports, container
  stevedoring, petrol)
• price notification provisions of the CCA (post, air services)
• Competition and Consumer (Industry Code—Electricity Retail) Regulations 2019
• Electricity-specific prohibitions in Part XICA of the CCA
• rules and directions made by ministers in markets where competition is newly emerging or may not be working efficiently (gas, electricity, the northern Australian residential insurance market) or in recently deregulated markets.

The ACCC uses its regulatory powers to facilitate access to bottleneck infrastructure and establish efficient pricing for that access. Efficient access creates conditions for competition to emerge with flow-on impacts for consumers in the form of lower prices, higher quality products and innovation.

This deliverable is about keeping a close watch on the price and quality of goods and services available in markets that are at risk of being inefficient because they are highly concentrated or developing or that are otherwise an area of high consumer concern. This transparency can remedy market failure by correcting competition issues. In addition, it puts suppliers in those markets on notice that their conduct is under scrutiny and also informs any regulatory or policy responses that may be required to promote competition or protect consumers.

This deliverable is about the ACCC using its powers to enforce industry-specific rules that promote competitive, efficient markets. It seeks to mitigate harm to competition or consumers by stopping conduct or securing appropriate remedies. We exercise these powers, where appropriate, in response to anti-competitive conduct, abuse of market power and competitive or consumer harm.

Analysis of performance

Despite the impact of the COVID-19 pandemic, we made significant progress in our priority areas. We met our deliverables for the key performance indicators and pursued a variety of other initiatives to promote our objectives for Australia’s infrastructure sectors.

The ACCC seeks to facilitate competitive market outcomes where possible. In recent years, pure economic regulation of bottleneck and wholesale monopoly services has represented a smaller, yet still vital, proportion of our work. In contrast, our work in monitoring and reporting on key markets has expanded. This reflects our wider role in improving the functioning of markets. Depending on the market, its state of development and the source of market failure, our additional tools range from education and advocacy to monitoring and reporting, as well as enforcement and compliance.

Our advocacy and advice role is integral to the outcomes we seek to achieve. Advocacy can help prevent or address market issues and obtain more competitive and efficient outcomes that would be difficult to achieve if left to traditional regulatory measures alone. This role is important both for industries where we already have a role and for ensuring that effective regulatory frameworks are established in new and emerging concentrated or monopolistic markets. During the year, we undertook wide-ranging advocacy, from seeking reform of the National Access Regime for significant infrastructure to ensuring that competition is a key pillar in regulatory frameworks covering emerging financial services.

In dealing with some issues, a mix of regulatory approaches is necessary to bring about positive consumer outcomes. For example, suboptimal National Broadband Network (NBN) consumer experience is a multifaceted issue that has the potential to become more deeply entrenched as the NBN rollout concludes. We have sought to address the underlying causes through a combination of direct regulatory intervention; transparency through monitoring; consumer education; advocacy; and, where necessary, appropriate enforcement action.

The impact of the COVID-19 pandemic required us to refocus our priorities during the third and fourth quarters of 2019–20 to respond to immediate challenges. Broadly this involved:

• enhanced broadband performance and petrol price monitoring
• other immediate responses to assist industry and consumers, including deferring certain regulatory obligations to ensure service continuity and assessing authorisation applications for firms that need to work together to mitigate impacts on supply chains and consumers
• adjusting timeframes for less time-critical matters to reduce pressure on stakeholders.

During 2019–20 our major regulatory activities included:

• progressing two key inquiries into the NBN consumer experience to address gaps in service standards and to restore competitive pricing of entry-level plans on the NBN
• progressing and concluding several inquiries into continued regulation and setting appropriate access terms for key wholesale telecommunications services, including fixed-line, mobile and transmission services
• undertaking several regulatory assessments in relation to compliance with existing pricing regulation in sectors including rail and post
• publishing multiple monitoring reports on different infrastructure sectors, including airports, bulk grain ports, container stevedoring, telecommunications, water and petrol, to inform stakeholders of how the industry performed during the year.

Other key achievements during the year included:

• completing investigations into misleading claims, or discriminatory conduct in NBN wholesale markets, that led to financial penalties or formal warnings
• assisting broader government and industry initiatives by providing advice on suitable regulatory regimes or reforms in new, emerging or concentrated sectors
• providing guidance for consumers across various industries, including fuel, airports and telecommunications
• engaging with government and policy reform processes to promote efficient use of scarce resources, such as providing advice for allocation limits for an upcoming spectrum auction.

More information on the above outcomes and other activities we have undertaken through the year can be found in our ACCCount quarterly reports.

Actions undertaken to achieve our purpose

The ACCC’s work in the telecommunications sector contributes to all three of the deliverables for strategy 3, as it encompasses regulation, monitoring and enforcement.

We are responsible for the economic regulation and monitoring of the telecommunications sector. Our role is to provide effective regulation of telecommunications that will protect, strengthen and supplement competitive market processes to improve economic efficiency and increase the welfare of Australians.

We regulate access to monopoly wholesale telecommunications infrastructure and wholesale services, which helps reduce barriers for operators seeking to enter and compete in downstream markets. This creates an environment where the competitive process can develop and deliver better outcomes for consumers through more innovative and competitive services, lower prices, better quality services, more product differentiation and more investment.

Providing advice and expertise and facilitating market transparency are also key roles for the ACCC, particularly as the telecommunications market evolves.

In addition to the CCA, we have responsibilities under the following Commonwealth legislation:

• Broadcasting Services Act 1992
• Copyright Act 1968
• National Broadband Network Companies Act 2011
• Radiocommunications Act 1992
• Telecommunications (Consumer Protection and Services Standards) Act 1999
• Telecommunications Act 1997.

NBN consumer experience

As the NBN build approaches its conclusion, attention is turning to the quality of services it provides and ensuring that positive competition and consumer outcomes are realised. As NBN Co is a monopoly service provider, it faces limited competitive constraint, which can result in suboptimal outcomes for downstream competition and consumers. As the economic regulator, we have made targeted interventions to address a range of issues.

During 2019–20 we progressed a number of projects directed at addressing key sources of consumer detriment. These projects are supported by a framework of monitoring of developing retail and wholesale NBN markets and providing appropriate guidance to consumers and industry.

A key issue of focus is evidence of poor consumer experience during the migration from legacy copper-based services and the subsequent poor performance of their NBN service. These outcomes were reflected in complaints to the ACCC and other bodies, with a significant number of consumers impacted by missed appointments and faults when connecting their NBN service and by slower than expected broadband speeds. We also observed entry-level plans on the NBN being withdrawn or priced higher, which left many consumers with no option but to pay more for their fixed-line communications than they had before being migrated to the NBN.

We have sought to address this via two regulatory inquiries: one in relation to NBN Co’s wholesale service standards and the second into NBN wholesale pricing.

On wholesale standards, we already had secured some significant outcomes, including a court enforceable undertaking from NBN Co to pay rebates for failing to meet key commitments. During the year, NBN Co made product and pricing changes in response to our concerns, including a modified entry-level product. However, we remained concerned that these changes might still not promote a smooth transition of legacy consumers to the NBN.

Both inquiries were placed on hold in April 2020 to allow stakeholders to focus on responding to the COVID-19 pandemic. While the inquiries are on hold, we have released position papers on both matters to guide commercial negotiations in the context of new longer term access arrangements. As the pandemic situation eases, we will assess developments and industry views to determine whether further regulatory terms are required.

A number of work programs aimed at supporting our objectives have continued through the COVID-19 pandemic.

Our Measuring Broadband Australia (MBA) reports provide Australian consumers with accurate and independent information about broadband speeds. The MBA program addresses information asymmetry. It has led to greater performance-based competition and contributed to improving Australia’s internet performance. The data obtained through the program is a vital tool in our advocacy efforts in highlighting issues of underperformance and the extent to which consumers may be paying for speeds that are not delivered.

In May 2020 we released our first MBA monthly key indicators report to provide further insights into NBN performance. These reports have been particularly beneficial during the surge in demand on the NBN with the COVID-19 pandemic requiring workers and students to switch to online methods of communication.

In addition to the information provided by the MBA, we consider that arming consumers with information about their services and rights will support our objectives for positive NBN outcomes. On the ACCC website we provide a plain English guide to using NBN fixed wireless to help consumers impacted by congestion issues on the NBN fixed wireless network. We have supplemented this with information to help consumers select an appropriate NBN service based on their usage requirements. This consumer guidance complements the broadband speed claims industry guidance, which helps retail service providers to ensure that they give prospective customers clear and accurate information on the typical speeds their services provide.

Another element of supporting our objectives is ensuring compliance with relevant legislation and taking action where consumers have been misled or anti-competitive conduct has occurred. In 2019–20 we secured significant compliance outcomes for consumers in relation to NBN issues, including two key results for Optus and Telstra customers. Optus was ordered to pay $6.4 million in penalties for making misleading disconnection claims to its customers. Optus had emailed customers warning them they had to take up Optus NBN broadband or risk losing their broadband service. Under the terms of a court enforceable undertaking to us, in November 2019 Telstra announced that it would contact customers who had been upgraded to a plan on which they were paying for speeds that their NBN connection could not provide. For more information on these outcomes, see ACCCount, 1 October to 31 December 2009, page 38.

Case study: Ensuring fair access to key wholesale communications services
Regulating access to wholesale monopoly infrastructure is crucial to supporting our long-term objectives in communications by reducing entry barriers and promoting competition and investment in downstream retail markets. During the year, we reviewed regulated access terms for key inputs into retail markets for legacy fixed-line, mobile termination and transmission services.

In November 2019 the ACCC announced its decision to maintain existing regulated wholesale pricing for legacy fixed-line services, including ADSL, until 30 June 2024. This access determination provides certainty for service providers and their consumers still using these services and delivers real wholesale price reductions.

During the year we made draft determinations with significantly lower wholesale pricing for access to the mobile terminating access service (MTAS) and the domestic transmission capacity service (DTCS).

Access to the MTAS enables providers of fixed and mobile voice services to offer their customers the ability to call customers of other mobile networks. As mobile operators have a monopoly over termination on their network, regulation of the MTAS promotes competition in downstream retail markets by ensuring termination charges are cost based.

Transmission services, also known as backhaul, are high-capacity wholesale services that carry large volumes of voice, data and video traffic, often over long distances. By accessing wholesale transmission, retail providers can offer competitive services to consumers in areas where they do not own transmission infrastructure, particularly regional areas. This is vital for a range of downstream markets, including NBN residential and business markets, as well as for mobile services.

The pricing in our draft MTAS and DTCS access determinations reflects the continuing lower costs of providing these services due to more efficient technology. We intend to make final access determinations later in 2020.

Lower regulated pricing will enable service providers to use mobile termination and transmission services at efficient costs and promote competition in a range of downstream communications markets for the benefit of consumers.

Actions undertaken to achieve our purpose

The ACCC has compliance, enforcement and advisory roles in the water sector under the Water Act 2007 (Cth). In these roles, we aim to promote transparency of infrastructure operator and state regulated water charges, and limit barriers to water trade in the Murray–Darling Basin.

We monitor regulated prices charged by infrastructure operators through our annual Water monitoring report. In 2019–20 we also monitored and enforced compliance with the Water Charge Termination Fees) Rules 2009, the Water Charge (Infrastructure) Rules 2010, the Water (Planning and Management Information) Rules 2010 (collectively the water charge rules), and the Water Market Rules 2009.

New water charge rules commenced on 1 July 2020. To improve pricing transparency and make it easier for infrastructure operators to comply, these new rules clarify requirements and combine the water charge rules into a single set of rules. The ACCC has prepared guidance materials to help stakeholders understand the new rules.

The ACCC also enforces infrastructure operators’ and water market intermediaries’ compliance with the CCA, including the Australian Consumer Law (ACL). This includes prohibitions against anti-competitive conduct under the CCA, and fair trading requirements as specified in the ACL.

The ACCC is also undertaking an inquiry into Murray–Darling Basin water markets. This is discussed at Murray-Darling Basin Water Markets Inquiry.

Actions undertaken to achieve our purpose

The ACCC’s work in fuel price monitoring contributes to deliverable 3.2, as it involves monitoring highly concentrated markets of consumer concern.

As directed by the Treasurer under Part VIIA of the CCA, the ACCC monitors the prices, costs and profits relating to the supply of petroleum products in the Australian downstream petroleum industry. The latest direction, which took effect from 19 December 2019, requires the ACCC to report at least once per quarter from 1 January 2020. Our work involves monitoring and reporting on retail prices of unleaded petrol, diesel and automotive liquefied petroleum gas (LPG) in all capital cities and over 190 regional locations across Australia.

The ACCC prepares two types of reports under the direction: quarterly reports (which look at petrol price movements in the capital cities and regional locations and the factors that led to price changes over the quarter); and industry reports (which look at particular aspects of consumer interest in the fuel market in relation to prices, costs and profits). In 2019–20 we released four quarterly reports and two industry reports: a report on petrol prices by major retailers in 2018 and a report analysing the financial performance of the Australian downstream petroleum industry
between 2002 and 2018.

The ACCC’s role is to promote effective competition and inform consumers in petrol markets, so that resources are used efficiently and markets work in the interests of consumers. Our reports and other public information help to improve consumer awareness and assist motorists to navigate complex fuel markets.

In response to the COVID-19 pandemic, on 16 March 2020 the ACCC announced that it would monitor retail petrol price movements to determine whether recent falls in international crude oil and refined petrol prices were flowing through to consumers. The announcement followed a decline in international crude oil and refined petrol prices in early January 2020 and sharp falls after early March 2020. This monitoring informed our public commentary and reporting and our responses to fuel-related enquiries.

The ACCC Infocentre received around 1340 fuel-related enquiries and complaints in 2019–20. Around half of those contacts were received between March and April 2020, coinciding with the initial COVID-19 pandemic period in the second half of the financial year. We also received more than 40 items of ministerial and general correspondence and fielded numerous media requests for interviews and comment. Enquiries were received on a range of fuel-related issues, including fuel prices in metropolitan and regional locations, time lags in retail fuel price reductions, and petrol price cycles.

Other stakeholder engagement included hosting a meeting of the ACCC Fuel Consultative Committee in November 2019.

In 2019–20 the fuel-related pages on the ACCC website received 586 511 page views—a decrease of 4491 page views (less than 1 per cent) from 2018–19. Of this total, the petrol price cycles web page received 533 540 page views—a decrease of 41 535 (around 7 per cent) from 2018–19. This was the most viewed page on the ACCC website, as it was in the previous year.

Actions undertaken to achieve our purpose

The ACCC has regulatory responsibilities in a number of major infrastructure sectors of the economy, in addition to telecommunications and fuel. These include:

• rail
• airports, including air traffic navigation, and aviation rescue and firefighting services
• container stevedoring and international liner cargo shipping
• bulk grain export facilities
• postal services.

The ACCC also has a role in arbitrating access disputes for services that have been declared under Part IIIA of the CCA. As with the other sectors we regulate, our activities in national infrastructure regulation seek to promote effective upstream and downstream competition and the proper functioning of markets to support efficient investment in key infrastructure networks and services.

Our work in these areas contributes to deliverables 3.1 and 3.2, as it encompasses both regulation and monitoring.

During 2019–20 we completed or progressed our major projects in various infrastructure sectors. This includes releasing monitoring reports in relation to airports, grain export and stevedoring.

Advocacy in relation to the regulation of monopoly infrastructure

Our competition advice and advocacy efforts are directed at ensuring that Australian markets operate within a policy framework that facilitates competition and efficient investment in key infrastructure networks and services.

A key focus during the year was to highlight sectors where unconstrained action by monopolists is damaging efficiency, investment and competition. In particular, we are concerned about monopoly pricing by non-vertically integrated monopolies that causes inefficiency and deters investment, which both result in higher prices for users and ultimately consumers.

The current threshold test to impose regulation under Part IIIA relates to the issue of the infrastructure owner denying access. That test limits the ability of Part IIIA to apply to monopolies where excessive pricing, not denial of access, is the issue. We have raised the potential for a market power test for declaration under the National Access Regime to address this issue. We have brought this issue to the fore, including through speeches by the Chair.

Case study: Pricing for access to Port of Newcastle infrastructure
On 28 November 2019 the ACCC announced that it would apply to the Federal Court for a review of the Australian Competition Tribunal’s October 2019 decision on the terms of access by Glencore Coal Assets Australia Pty Ltd (Glencore) to certain services at the Port of Newcastle.

In 2018 the ACCC arbitrated a dispute between Glencore and Port of Newcastle Operations Pty Ltd (PNO) that centred on the charge for ships entering the port to export Glencore’s coal. Both parties then applied to the Tribunal for re-arbitration of the dispute. The Tribunal handed down its decision on 30 October 2019.

A significant part of the dispute is about whether the costs that PNO is allowed to recover should include costs for dredging the shipping channel that were historically funded by various users of the port. The ACCC excluded these user-funded amounts in its original arbitration and determined an access charge of $0.61 per gross tonne. In its re-arbitration the Tribunal included the user-funded amounts and determined an access charge of $1.01 per gross tonne. The Tribunal’s decision allows PNO to recover the user-funded amounts in its access charge.

We are seeking judicial review as to whether the Tribunal erred at law when making its arbitration award. We do not consider it to be economically efficient for a service provider to be allowed to charge any user for costs of assets that have already been funded by users. We brought the proceedings due to the importance of this issue to the principles of economic efficiency and the implications for other regulatory decisions involving bottleneck infrastructure where users have contributed to the cost of enhancements.

Rail

In the rail sector, our current responsibilities include assessing and administering undertakings submitted by the Australian Rail Track Corporation (ARTC), which set out the terms of access to its Hunter Valley and interstate rail networks. ARTC’s rail access undertakings are submitted voluntarily under Part IIIA of the CCA.

In 2019–20 we completed an assessment of ARTC’s compliance with the Hunter Valley Access Undertaking financial model for 2016. During the year we continued to work with ARTC and stakeholders on the development of a replacement Interstate Access Undertaking. The ARTC committed to base its replacement undertaking on a valuation of its network conducted by an ACCC-appointed consultant, who is currently carrying out the valuation.

Grain export

In relation to bulk grain export facilities, our responsibilities include monitoring and assessing compliance with the Port Terminal Access (Bulk Wheat) Code of Conduct and making determinations on whether a port terminal service provider should be exempt from certain requirements under the code. During the year, in addition to our Bulk grain ports monitoring report 2018–19, we completed exemption applications for:

• T-Ports at Lucky Bay
• Riordan Grain Services at Portland.

Several other exemption applications are still under assessment, including from Cargill Australia Limited and Viterra Operations Pty Ltd.

Post

Following a review of Australia Post’s forecast revenues and costs, and consultation with stakeholders, we announced that we would not object to proposed increases in the prices of ordinary letters. With the minister’s agreement, Australia Post increased the prices of ordinary letter services delivered to its regular timetable. This includes an increase in the basic postage rate from $1.00 to $1.10.

Actions undertaken to achieve our purpose

Each year we seek to improve effectiveness in both our own and others’ regulatory practices. In 2018–19 we made improvements through a range of activities, including:

• industry consultation and engagement
• engagement with sector regulators and our international counterparts
• involvement in multilateral international forums.

The Fuel Consultative Committee (FuelCC) was established in 2010 to provide an opportunity for dialogue between the ACCC, the fuel industry and motoring organisations. The information shared increases our understanding of fuel industry issues and assists us in undertaking our role on issues related to competition and consumer protection in the fuel industry.

The ACCC hosted a meeting of the FuelCC on 8 November 2019. Topics discussed at the meeting included progress on ACCC petrol monitoring reports, developments in fuel price transparency arrangements across Australia, updates on Australian refinery and terminal capital developments, and influences on recent wholesale and retail petrol price movements.

The Infrastructure Consultative Committee (ICC), which was established in 2006, facilitates discussions on broad issues of infrastructure and infrastructure regulation in industries such as energy, telecommunications, water, rail, ports and airports. Membership of the group consists of representatives of both infrastructure service providers and major customer groups in these sectors.

In 2019–20 the ACCC hosted meetings of the ICC on 12 November 2019 and 21 May 2020.

Advocacy on emerging markets and financial services

In 2019–20 the ACCC continued to advocate for reforms to boost competition and efficiency in key infrastructure sectors of the economy. While these efforts continue, we recognise that the COVID-19 pandemic may impact on the timeframes for progress in these sectors.

The ACCC has had continuing engagement with stakeholders to progress reform measures in electronic conveyancing. Our advocacy seeks to support decision-makers and inform stakeholders to develop the market further and consider the merit of introducing certain regulatory arrangements, including interoperability to promote market-based competition.

In 2020 the ACCC began working with both state regulators and the Council of Financial Regulators to review elements of the regulatory framework for e-conveyancing systems, with a view to promoting financial stability, resilience and competition.¹⁷ The ACCC also participated in the Interoperability Industry Panel, which is considering how interoperability could play a role in facilitating competition in the market. More discussion of our involvement in shaping the regulatory framework for e-conveyancing is at Electronic conveyancing market reform report, in relation to strategy 1.

We also have a continuing role in advocating for the Australian Securities Exchange to design its replacement to the Clearing House Electronic Subregister System (CHESS) (the platform that enables cash equity trades to be cleared and settled) in a way that does not raise barriers to competition. The CHESS replacement is intended to be introduced next year.

In November 2019 the Transport and Infrastructure Council agreed to develop implementation details on a package of reforms to the way in which heavy vehicles fund road infrastructure, for consultation with industry. The reforms are being developed by a cross-jurisdictional working group that includes federal, state and territory transport departments and treasuries, the ACCC and other relevant bodies.

Utility Regulators Forum

The Utility Regulators Forum is coordinated by the ACCC and comprises the ACCC and AER and state and territory and New Zealand economic and sector regulators. Its meetings are an important opportunity to share information about priorities and regulatory approaches.

We publish the forum’s quarterly newsletter, Network, on our website. The newsletter features updates about regulatory issues and the latest decisions.

The forum was held twice during the year, in November 2019 and in May 2020.

ACCC and AER regulatory conference

The annual ACCC and AER Regulatory Conference was held in Brisbane on 1–2 August 2019, on the theme of ‘Economic regulation in Australia: Still fit for purpose?’. The conference brought together industry participants, policy-makers, academics and regulators from around the world to hear and discuss the latest ideas about the theory and practice of regulation.

Bilateral engagement

The ACCC engages bilaterally with a number of its international counterparts in relation to regulatory issues. We hold periodic meetings with the New Zealand Commerce Commission to discuss various matters of interest. We also engage with sectoral regulators in jurisdictions such as the United Kingdom, United States and European Union on specific matters of mutual concern.

Role and functions

The Competition and Consumer Act 2010 (Cth) (CCA) provides that relevant ministers may direct the ACCC to undertake market studies, inquiries and monitoring. These studies enable us to develop a sophisticated understanding of how well competition and markets are working in particular sectors and provide advice on a broader range of competition and consumer issues. The ACCC can also undertake self-initiated market studies and conduct research on matters that affect the interests of consumers.

Market studies and inquiries involve extensive investigation and analysis, including public consultation, with the aim of improving understanding of industry practices and dynamics in those sectors. We undertake market studies and inquiries and report on emerging competition issues to:

• identify market failures and how to address them
• assess the implications of emerging competition issues
• support and inform compliance and enforcement measures
• identify areas for policy consideration.

We also monitor and report on the prices and quality of particular goods and services to inform government, industry and consumers.

We publish our findings in formal reports that help to raise awareness among consumers, encourage public debate and inform policy consideration.

Priorities

The ACCC undertakes market studies, inquiries and monitoring covering a broad range of sectors as determined by ministerial direction or guided by our Compliance and Enforcement Policy priorities. The following were completed, continued or commenced in 2019–20:

• Wine Grape Market Study—completed
• Foreign Currency Conversion Services Inquiry—completed
• Customer loyalty schemes review—completed
• Gas Inquiry 2017–2025—continued
• Northern Australia Insurance Inquiry—continued
• Private health insurance industry annual report to the Senate—continued
• Electricity Market Monitoring Inquiry 2018–2025—continued
• Digital Advertising Services Inquiry—commenced
• Digital Platform Services Inquiry 2020–2025—commenced
• Murray–Darling Basin Water Markets Inquiry—commenced
• Home Loan Price Inquiry—commenced.

Performance indicators

Before 2018–19 the number of market studies and inquiries completed was included in the number of competition enforcement interventions under deliverable 1.1. From 2018–19 this became a standalone performance indicator.

Analysis of performance

In 2019–20 we completed three market studies and inquiries. We also published interim reports for the other market studies and inquiries listed above that continued or commenced in 2019–20. Due to the COVID-19 pandemic, some reporting timeframes were extended or delayed to enable stakeholders affected by the pandemic to participate in the inquiry process.

The various market studies, inquiries and monitoring we undertook in 2019–20 contributed to achieving the ACCC’s purpose of making markets work for consumers by informing stakeholders and encouraging public debate, informing policy consideration and improving the way markets function through the adoption of some recommendations.

The final report of our Digital Platforms Inquiry was provided to the Treasurer on 30 June 2019 and released by the government in July 2019. The report identified a number of adverse effects associated with digital platforms and contained 23 recommendations spanning competition law, consumer protection, media regulation and privacy law, reflecting the intersection of issues arising from the growth of digital platforms. On 12 December 2019 the government committed to adopting key recommendations from the inquiry, including the establishment of a permanent Digital Platforms Branch within the ACCC.

On 10 February 2020 the Treasurer issued a ministerial direction requiring the ACCC to undertake two public inquiries into:

• markets for the supply of digital platform services
• markets for the supply of adtech services and ad agency services.

The ACCC has begun preparing the first interim report in the Digital Platform Services Inquiry. This first report will consider competition and consumer issues that arise in respect of internet search engines, social media and online private messaging.

The Digital Advertising Services Inquiry into adtech services and ad agency services has also commenced. In March 2020 we released an issues paper regarding the inquiry. A number of industry responses to that issues paper were delayed due to the COVID-19 pandemic. The ACCC is currently undertaking further targeted consultation with industry participants regarding the inquiry and is required to produce its interim report to the Treasurer by 31 December 2020.

The ACCC’s Wine Grape Market Study report was released on 24 September 2019. It identified a range of possible unfair contract terms in standard form contracts offered by winemakers to wine grape growers. Following a subsequent investigation of these issues, several winemakers voluntarily changed their contract terms, resulting in fairer contracts overall. This included changes to contract terms relating to dispute resolution, wine grape quality assessment, one-sided termination rights, unilateral variations to contracts, rights to enter growers’ vineyards for inspections, and overly broad confidentiality provisions that could prevent growers from seeking legal or financial advice. However, the ACCC remains concerned about the lengthy payment periods specified in grape supply agreements, which mean that growers are waiting for long periods before being paid for their grapes.

The ACCC commenced its inquiry into the Murray–Darling Basin water trading markets with the release of an issues paper in October 2019. The reporting timeline for the Murray–Darling Basin Water Markets Inquiry interim report was extended by one month to 30 June 2020. The report was provided to the Treasurer on 30 June 2020 and released on 30 July 2020.

The interim report seeks feedback on options to address problems in water markets, including in relation to regulatory oversight, trade services and information quality and availability, market architecture, and governance.

On 2 September 2019 the ACCC released the Foreign Currency Conversion Services Inquiry final report. The report recommended that a scheme be developed to facilitate continued and efficient access to banking services by non-bank international money transfer (IMT) suppliers. We also released best practice guidance on pricing and disclosure that will allow businesses to improve their practices in this area. We will continue to monitor this sector, which will lead to improved outcomes for consumers.

We provided the Treasurer with an interim report of the Home Loan Price Inquiry on 30 March 2020, and it was released on 27 April. The interim report focused on pricing issues and made a number of findings about the pricing of home loans by the big four banks. In light of the COVID-19 pandemic, including the important role of lenders in managing aspects of the COVID-19 response, the Treasurer extended the timeframe for the final report by two months to 30 November 2020 and we adapted our stakeholder engagement approach accordingly.

On 25 July 2019 the Treasurer extended the Gas Inquiry until December 2025. The inquiry is aimed at improving the transparency and efficient operation of the gas market. In light of the evolving COVID-19 situation, we noted that we delayed our mid-year report by one month and committed to carefully considering the impact on businesses from information requests and consultation.

As part of this inquiry, the ACCC contributed to providing greater transparency in the east coast gas market by:

• providing two interim reports during 2019–20
• conducting a detailed review of Part 23 of the National Gas Rules, which aims to improve market transparency and facilitate access to pipelines on reasonable terms. The review found that Part 23 is generally working as intended; however, we identified a number of enhancements and made recommendations to improve market operations
• continuing to publish the liquefied natural gas (LNG) netback price series as one of the measures to improve transparency of gas prices.

As part of the ACCC’s 2018–2025 Electricity Market Monitoring Inquiry, we released two reports during 2019–20. These reports showed that consumers were benefiting from reforms to retailer pricing and advertising that came into effect on 1 July 2019. Residential bills fell by around 4 per cent compared with the previous year but were still around 20 per cent higher than a decade ago.

The electricity inquiry work, together with the ACCC’s electricity-specific enforcement roles, aimed at alleviating cost of living pressures arising from electricity prices, remained a priority as the COVID-19 pandemic developed. Our work under our electricity enforcement roles is discussed in more detail at Essential services.

The ACCC’s Northern Australia Insurance Inquiry continued during 2019–20, with the release of two reports that identified a number of measures to assist consumers facing unaffordable insurance premiums. The inquiry is another element of our work in seeking to address cost of living pressures for Australians by improving how markets function. The inquiry considered ideas to improve the affordability and availability of insurance from Australian and overseas suppliers and to see how they can be applied in northern Australia. A third and final report is due to the Treasurer in November 2020.

Competition and consumer issues arising from customer loyalty schemes was an ACCC compliance and enforcement priority in 2019. To address this priority, we undertook a review of customer loyalty schemes. The final report was published on 3 December 2019. It recommended that loyalty schemes—such as those offered by airlines, supermarkets and hotel operators- better inform consumers, improve their data practices and stop automatically linking members’ payment cards to their loyalty scheme profiles. It also called for broader changes to consumer and privacy law. While some loyalty scheme operators made changes after the review commenced and the draft report was released, we remain concerned about certain practices that a number of loyalty schemes continue to engage in.

The objective of the ACCC’s Gas Inquiry is to improve transparency and support the efficient operation of the gas market with the aim of improving competition and lowering gas prices for energy customers. On 25 July 2019 the Treasurer extended the inquiry until 2025.

We released two Gas Inquiry interim reports during 2019–20. They set out findings about market conditions, reported key market information and identified policy responses for governments.

The reports found that the east coast gas market is likely to have sufficient supply to meet demand in 2020. Beyond 2020 the supply outlook remains uncertain, particularly in light of significant reserve downgrades in Queensland.

The southern states are at risk of facing a supply shortfall in the medium term unless there is more exploration and development in the south or new infrastructure to bring more supply to southern states. We continue to urge state and territory governments to assess individual gas development applications on a case-by-case basis to improve supply conditions.

Domestic gas prices in the east coast states have remained high despite falling LNG netback prices, with prices under recently executed contracts higher than those in the past.

The inquiry has identified concerns about access to gas pipelines in regional areas, where some pipeline operators appear to be actively discouraging access. This has prompted us to examine this behaviour to determine whether it may constitute a breach of the CCA.

We conducted a detailed review of Part 23 of the National Gas Rules, which were introduced in 2017 to improve market transparency and facilitate access to pipelines on reasonable terms. We made recommendations to improve the quality, reliability and accessibility of the information that is reported by pipeline operators and to strengthen the negotiation process and improve overall market operations.

We continued to publish the LNG netback price series.¹⁸

Our January 2020 interim report found that the LNG netback prices have decreased since May 2019, with forward LNG netback prices for 2020 well below netback prices seen in recent years. Prices offered in the east coast gas market have remained mostly steady within a range of $9/gigajoule (GJ) to $12/GJ, but domestic prices remain high and there is significant uncertainty about future supplies. We will undertake further work in 2020 to investigate and understand the divergence between domestic prices and LNG netback prices.

The objective of the Electricity Market Monitoring Inquiry 2018–2025 is to monitor and assess the operation of the National Electricity Market (NEM)¹⁹, including retail prices, wholesale prices, profits and contract market liquidity. We are also examining the effects of policy changes, including those resulting from recommendations made in the ACCC’s 2018 Retail Electricity Pricing Inquiry final report.

During 2019–20 we released two reports on electricity monitoring. We observed that:

• Consumers were benefiting from reforms to retailer pricing and advertising that came into effect on 1 July 2019 (the Competition and Consumer (Industry Code—Electricity Retail) Regulations 2019 (the Electricity Retail Code), with some automatic reductions in bills and greater ease in comparing deals.
• For 2018–19, network costs continued to contribute the largest amount to consumer bills, making up 43 per cent of the average annual bill for residential customers. Wholesale costs were next (33 per cent), then retail costs (11 per cent), environmental costs (8 per cent) and retail margins (4 per cent). ACCC analysis showed that residential bills fell by around 4 per cent in 2018–19 compared with the previous year but were still around 20 per cent higher in real value than a decade ago.

We also engaged in a number of policy processes relating to electricity market reform. We made five submissions during 2019–20, including on major reforms such as the Australian Energy Market Commission’s coordination of generation and transmission investment and the Energy security Board’s post-2025 market design. Detail on our electricity-specific enforcement roles is at Essential services.

On 30 June 2019 the ACCC provided the final report of the Digital Platforms Inquiry to the Treasurer, and the report was released on 26 July 2019. This 18-month inquiry was carried out at the direction of the Australian Government, which asked the ACCC to conduct an inquiry into the impact of digital search engines, social media platforms and other digital content aggregation platforms on the state of competition in media and advertising services markets.

The final report of the Digital Platforms Inquiry contained 23 recommendations spanning competition law, consumer protection, media regulation and privacy law, reflecting the intersection of issues arising from the growth of digital platforms. The report is available on the ACCC website.

On 12 December 2019 the Australian Government committed to adopting the key recommendations from the Digital Platforms Inquiry, including:

• establishing a permanent Digital Platforms Branch within the ACCC to, among other things:

1. monitor and report on the state of competition and consumer protection in digital platform markets
2. undertake inquiries as directed by the Treasurer, starting with the supply of online advertising and adtech services

• ensuring that digital platforms develop an industry code to counter disinformation, which has become increasing prevalent on their services
• ensuring that digital platforms develop a privacy code for digital platforms with the Office of the Information Commissioner to address the particular uses arising from data collection on these services.

In April 2020 the Australian Government also directed the ACCC to develop a mandatory code of conduct to address bargaining power imbalances between Australian news media businesses and digital platforms. The development of a code of conduct is part of the Government’s response to the ACCC’s Digital Platforms Inquiry final report, which identified that there is a fundamental bargaining power imbalance between Australian news businesses and each of Google and Facebook.

The government’s response to the Digital Platforms Inquiry provides a roadmap for a program of work and a series of reforms to promote competition, enhance consumer protection and support a sustainable Australian media landscape in the digital age. The program of work for the ACCC being carried out through the Digital Platform Services Inquiry 2020–25 and the Digital Advertising Services Inquiry is outlined below.

On 10 February 2020 the Treasurer issued a ministerial direction requiring the ACCC to hold a public inquiry into markets for the supply of digital platform services. The ACCC is required to provide the Treasurer with an interim report by 30 September 2020, further interim reports every six months until the inquiry concludes, and a final report by 31 March 2025. There will be 10 reports in total.

Digital platform services covered by this direction include internet search engine services, social media services, online private messaging services, digital content aggregation platform services, media referral services and electronic marketplace services (both app stores and general online marketplaces). The direction also covers digital advertising services supplied by digital platform service providers and the data practices of both digital platform service providers and data brokers.

The ACCC’s first interim report, due to the Treasurer on 30 September 2020, will focus in particular on:

• internet search engines (including general search services and specialised search services)
• social media
• online private messaging.

Subsequent reports will focus on different categories of digital platforms.

On 10 February 2020 the Treasurer issued a ministerial direction requiring the ACCC to hold a public inquiry into markets for the supply of adtech services and ad agency services. The ACCC is required to provide an interim report to the Treasurer by 31 December 2020 and a final report by 31 August 2021.

On 10 March 2020 the ACCC released an issues paper regarding the inquiry and began consultation with relevant stakeholders.

On 24 September 2019 the ACCC released the final report of its Wine Grape Market Study. The study examined competition, contracting practices, transparency and risk allocation issues in the wine grape supply chain.

The ACCC initiated the market study in September 2018 in response to a variety of concerns from growers relating to price transparency, risk allocation and lack of competition between wine grape buyers.

The final report made recommendations on areas including quality assessments, price transparency, payment periods, dispute resolution and unfair contract terms. The ACCC will review the industry’s progress in adopting these recommendations 12 to 18 months after the release of the report.

The ACCC is conducting an inquiry into markets for tradeable water rights in the Murray–Darling Basin, as directed by the government on 8 August 2019.

Through the inquiry, the ACCC is considering options to enhance markets for tradeable water rights, including options to enhance their operations, transparency, regulation, competitiveness and efficiency.

We have undertaken widespread consultation and information gathering as part of the inquiry to date, including receiving over 130 submissions in response to the ACCC’s issues paper, holding 10 public forums and issuing compulsory information requests to a range of market participants.

The inquiry’s interim report was provided to the Treasurer on 30 June 2020 and released to the public on 30 July 2020. Key problems identified included the following:

• Overarching governance arrangements, which result in regulatory fragmentation and overlapping of roles of different governing bodies, contribute to many of these problems or prevent them from being addressed in an effective and timely way.
• Water market intermediaries such as brokers and water exchange platforms operate in a mostly unregulated environment, allowing conflicts of interest to arise and opportunities for transactions to be reported improperly.
• There are scant rules to guard against the emergence of conduct aimed at manipulating market prices, and there is no particular body to monitor the trading activities of market participants.
• There are information failures that limit the openness of markets and favour better resourced and professional traders who can take advantage of opportunities such as inter-valley trade/ transfer openings.
• Differences in trade processes and water registries between the five Basin States prevent participants from gaining a full, timely and accurate picture of water trade, including price, supply and demand.
• Important information, such as allocation policies and river operations policy that can significantly impact water pricing, is inadequately communicated to the irrigators and traders who rely on it to make business decisions.
• There is a disconnect between the rules of the trading system and the physical characteristics of the river system. The physical characteristics are not adequately considered in the processing of trades that change the location of water use and are instead managed through some blunt and imprecise rules.
• Enforcement of the current market rules is inconsistent and limited.

In response to these issues, the ACCC is considering a number of options for improving the operation of water markets, including to:

• address insufficient regulatory oversight, and enforcement and compliance activity, in relation to some practices of market participants
• streamline trade services and improve information quality and availability
• reform market architecture so it will keep pace with increasing trade activity
• reconsider governance frameworks to enable independent and clear decisions on the development of market settings.

The ACCC is seeking feedback on the interim report from interested parties. We must submit a final report to the Treasurer by 30 November 2020.

The ACCC also has compliance, enforcement and advisory roles in the water sector under the Water Act 2007 (Cth), which is discussed at Murray–Darling Basin water markets.

In early October 2018 the ACCC commenced an inquiry examining the pricing of foreign currency conversion services in Australia and evaluating whether there are impediments to effective competition in the sector. We released the Foreign Currency Conversion Services Inquiry final report on 2 September 2019.

The report reveals that Australian consumers are paying too much for foreign exchange (FX) services because of confusing pricing and a lack of robust competition. It highlights important competition and consumer issues affecting individuals and small businesses that use IMTs, foreign cash, travel cards, and credit cards or debit cards for transactions in foreign currencies.

The ACCC found that it can be challenging for consumers to shop around and make informed decisions about FX services. As a result, many consumers continue to use the big four banks for FX services despite the availability of much cheaper alternatives.

We found that it is difficult for consumers to compare prices for FX services because some suppliers do not disclose their total price up front. In addition, consumers pay unexpected fees for some services. Finally, complex prices can deter consumers from shopping around because of the time and effort required to do so.

The ACCC has released guidance alongside the report to help consumers shop around for FX services. For example, the guide gives tips on sending money overseas and avoiding fees when making overseas purchases online.

The report also includes best practice guidance for businesses supplying FX services, which explains how they should disclose prices to consumers. The guidance focuses on ensuring that businesses clearly disclose the full price of an FX service to consumers up front. Following a request from the Treasurer, the ACCC will be monitoring take-up of the best practice guidance.

The report found that recent competition from newer entrants is delivering better outcomes for consumers using IMTs, despite some non-bank IMT suppliers having been denied access to bank services. It recommends development of a scheme to facilitate continued and efficient access to banking services by non-bank IMT suppliers. This scheme would include addressing the due diligence requirements of the banks, including in relation to anti-money laundering and counterterrorism financing requirements.

On 14 October 2019 the Treasurer directed the ACCC to conduct an inquiry into home loan pricing. The inquiry is investigating a number of issues including differences between advertised prices and prices actually paid, differences in the rates paid by new and existing customers, and the pricing responses by home loan suppliers following cuts by the Reserve Bank of Australia to the official cash rate.

In addition, the Home Loan Price Inquiry is considering impediments that prevent more consumers from switching to cheaper home loan suppliers. As part of this, the ACCC is considering matters such as consumer decision-making and biases, information used by consumers, and the extent to which supplier practices and strategies may contribute to consumers paying more than they need to for home loans.

An interim report, focusing on pricing issues, was provided to the Treasurer on 30 March 2020. The report made a number of findings about the pricing of home loans by the big four banks, including that:

• a lack of price transparency, particularly in relation to discretionary discounts, makes it difficult for consumers to compare home loans
• loyalty can cost existing customers—customers with new loans pay, on average, significantly less for home loans than customers with existing loans. This highlights the importance of shopping around
• maintaining profits was a major consideration for the big four banks as they weighed whether to reduce mortgage rates in line with Reserve Bank of Australia cash rate cuts during 2019
• community expectations and competitive positioning were also considerations when making headline variable rate decisions
• cuts to headline variable rates for the big four banks were smaller than the reduction in funding costs over 2018 and 2019.

A final report, which will consider barriers to consumers switching to alternative home loan suppliers, is due by 30 November 2020.

On 25 May 2017 the Australian Government directed the ACCC to conduct a wide-ranging inquiry into the supply of residential building (home), contents and strata insurance in northern Australia. The Northern Australia Insurance Inquiry aimed to address concerns about insurance availability and affordability, promote more informed and more competitive insurance markets, and make a difference for consumers in northern Australia.

During 2019–20 we released the second interim report of the inquiry. The report detailed how home, contents and strata insurance is becoming increasingly unaffordable in northern Australia, where the rate of households going without insurance is almost double that in the rest of the country.

The report considered market interventions that could help consumers. While these measures all face challenges and would require significant public funds, they may also lead to reduced government spending in future on post-disaster relief to non-insured households.

During the year, we also published an update finalising the 13 draft recommendations set out in the December 2018 report aimed at boosting price transparency and consumer choice in northern Australia.

In preparing the third and final report to the Treasurer in late 2020 we will be examining further measures to improve insurance affordability and availability.

On 28 February 2020 the ACCC’s Private health insurance report 2018–19 was tabled in the Senate. The report was published on our website on 2 March 2020. It analyses key competition and consumer developments and trends in the private health insurance industry that have affected consumers’ health cover and out-of-pocket expenses during the reporting period.

The report for the 2018–19 period identified a number of key industry developments and trends, including that, for the first time, the majority of hospital treatment policies held contained exclusions. The report also identified potential issues regarding the use of consumer data in the sector, similar to those detailed in the ACCC’s Digital Platforms Inquiry and customer loyalty schemes review final reports.

Consumer and competition issues arising from customer loyalty schemes was a compliance and enforcement priority for the ACCC in 2019.

In February 2019 the ACCC commenced a review of consumer-facing customer loyalty schemes. The review focused on the major customer loyalty schemes available in Australia, such as those offered by airlines, supermarkets and hotel operators. Its objective was for the ACCC to gain a better understanding of how customer loyalty schemes operate; how they collect, use and disclose consumer data; and their terms and conditions.

The ACCC considered competition and consumer issues associated with participation in loyalty schemes, including:

• whether consumers are properly informed of the use and trading of their personal information
• whether consumers receive the benefits touted by many of these programs, and the extent of restrictions associated with redeeming rewards
• the impact of consumer loyalty on competing firms, particularly new entrants to the market
• new and emerging practices relating to customer loyalty schemes.

As part of the review, the ACCC commissioned a report from industry expert Loyalty & Reward Co, to help inform our analysis of customer loyalty schemes.

We released a draft report for consultation from 5 September to 3 October 2019. The report included draft recommendations which called on loyalty schemes to improve how they:

• provide consumers with information on their handling of consumer data
• provide consumers with meaningful control over their data
• communicate with their members.

The draft report also noted findings similar to issues identified in the Digital Platforms Inquiry (see Digital Platforms Inquiry) and included the following additional draft recommendations repeating ACCC calls for changes to the law to protect consumers:

• that the Australian Consumer Law be amended to prohibit unfair contract terms and introduce a prohibition against certain unfair trading practices
• that there be broader reform of Australian privacy law.

Twenty-eight responses to the draft report were published on the ACCC website (responses were treated as public and published unless confidentiality was claimed). We contacted major loyalty scheme operators as part of our consultation process and noted that some schemes made changes during the course of the review or announced changes after the release of our draft report.

As part of the consultation, the ACCC also prepared a brief guide to the draft report for consumers.

The Customer loyalty schemes final report was published on 3 December 2019. It was based on analysis of information voluntarily provided by loyalty scheme operators and consumers, research, and consultation and written submissions in response to the draft report.

The final report identified a range of concerns about the practices of loyalty scheme operators. These practices have the potential to cause widespread consumer detriment, including in relation to the disclosure of certain data-handling practices and terms and conditions that can prevent consumers making informed choices.

To address these concerns, the report made three recommendations for loyalty scheme operators:

• Customer loyalty schemes should improve how they communicate with their customers. Central to this recommendation is that loyalty scheme operators need to review their approach to presenting terms and conditions and ensure changes are fair and customers are adequately notified of them.
• Consistent with the recommendations of the Digital Platforms Inquiry final report, the Australian Consumer Law should be amended so that unfair contract terms are prohibited (and not just voidable) and to include a prohibition against certain unfair trading practices.
• Customer loyalty scheme operators should end the practice of automatically linking members’ payment cards to their loyalty scheme profile. The report specifically states that Coles, Flybuys and Woolworths Group should end the practice of automatically linking customers’ payment cards to their loyalty scheme profile to track their purchasing behaviour and transaction activities when they do not scan their loyalty card.