Australia: The ACCC pivots in light of COVID-19

By Lynne Lewis, Thomas Jones, Megan Edwards, Tom Macken

05-2020

Due to the rapidly changing global landscape, the Australian Competition and Consumer Commission announced on 27 March 2020 a "re-focus" of its 2020 Compliance and Enforcement Priorities in response to the COVID-19 pandemic. While it has not explicitly revoked its existing priorities, which we address in our presentation, the ACCC has announced it will refocus its efforts on the following: 

  • A commitment to ensuring compliance with the consumer guarantees, including by: 
  • publishing on the ACCC website updated advice for both businesses and consumers as to how to comply with the consumer guarantees in the time of pandemic;
  • establishing an internal COVID-19 Taskforce which educates businesses in relation to their obligations with regard to cancellations, refunds and suspension of services during the pandemic. 

On 2 April 2020, the ACCC published a guidance document for small business on how to comply with its obligations under the consumer guarantees.  The current guidance, available here https://www.accc.gov.au/business/covid-19-coronavirus-information-for-small-business, addresses some frequently asked questions in relation to events, and pricing issues, and reminds businesses of their obligations under the Australian Consumer Law not to engage in misleading or deceptive conduct, act unconscionably, or rely on unfair contracts. 

  • Commitment to raise awareness of the increasing number of COVID-19 scams.  Scamwatch has received reports of fraudulent emails claiming to be from virus experts, COVID-19 vaccine product claims, fake online shopping sites which request payment by wire transfer, international funds transfer, preloaded card and Bitcoin, and misinformation about COVID-19 on text and social media. 
  • An overarching commitment to address any behaviour the ACCC considers to be exploitative which results in disproportionate improvement of commercial position and/or consumer harm.  In particular, while price changes commonly referred to as 'price gouging' are not, of themselves, illegal, misleading claims as to the reasons for price increases could be misleading or deceptive in breach of the Australian Consumer Law (ACL).  In addition, the laws in relation to unconscionable conduct, including those under the ACL, may apply in circumstances of extreme price gouging for essential products.  
  • A renewed focus on affordability issues in key essential service sectors such as energy, communications and fuel to monitor pricing behavior by industry participants and address any conduct that the ACCC considers to be excessive or unreasonable in the circumstances.
  • A commitment to actively engage with governments and businesses to consider granting interim authorisations which support coordination between competitors across a range of key industries which the ACCC considers to be necessary and in the public interest in order to assist businesses in managing the COVID-19 pandemic. An authorisation from the ACCC provides statutory protection from court action for conduct that might otherwise be in breach of the competition provisions of the Competition and Consumer Act 2010 (Cth).

    To date, the ACCC has granted 15 interim authorisations covering businesses across a wide range of industries including banks, supermarkets, medical wholesalers, airlines, gas and electricity companies, oil companies, NBN Co and telecommunications providers, pharmaceutical companies, insurance companies, shopping centres and private hospitals to assist in managing the COVID-19 pandemic. 

  • While not going so far as to say that it will halt its enforcement activities, the ACCC has committed to minimising the regulatory burden that companies face during the pandemic and consider the impacts of scope and timing of statutory notices for production of information and documents.  The ACCC will also minimise the use of compulsory examinations, and, to the extent the ACCC considers such an examination necessary, will utilise technology to hold it by phone or video conference. 
  • The ACCC has also stated that the timelines for its review/application of proposed mergers may need to be extended in some circumstances depending on the administrative and practical difficulties presented by COVID-19. The ACCC has published on its website a more detailed guidance note for interested parties on this point. 
  • A continued focus on the performance of key regulated industries, including telecommunications, fuel pricing and energy and water, with the possibility of considering exemptions if the existing obligations in these industries become impracticable or undesirable. A number of public inquiries in these industries being undertaken by the ACCC have also been deferred including the inquiry into NBN's wholesale service standards and the inquiry into NBN's access pricing. 
  • The continued focus on product safety priorities remains, including the Takata Airbag recall, particularly as Australians are increasingly using private cars instead of public transport due to lockdown obligations. 

It is clear that, while the ACCC has pivoted in light of the pandemic, it has certainly not shuttered the windows.  Businesses are encouraged to ensure continued compliance with the Competition and Consumer Act.  If you require any advice or guidance at this time, please contact the team at Bird & Bird. 

 
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