Wednesday, 29 August 2018

Federal Government failing small business in legal services procurement

I always like having a brief look at the current Panel Head Agreement for the Provision of Legal Services to the Australian Government just to see how unfriendly it is to small business law firms. The current version of the Agreement continues in that long tradition by requiring law firms to - (1) provide a wide range of value added services at no cost, including training sessions and letting government departments use your offices at no charge (2) take out high levels of insurance cover (3) provide extensive warranties and indemnities (4) commit to highly onerous reporting requirements and (5) pay the AG's a Panel Fee set as a percentage of total billings. Surprisingly, one major legal area which is not covered by the Agreement is the provision of consumer law advice. This seems particularly strange given the extension of the unfair contract term (UCT) laws to small businesses from November 2016.

Surely Federal Government departments are going to need some advice about how not to fall foul of these UCT laws in their standard form contracts, most likely starting with the AG's own Agreement for the Provision of Legal Services!

Wednesday, 22 August 2018

ACCC Essentials – understanding the Australian Competition and Consumer Commission’s 2018 Compliance and Enforcement Priorities


It is vitally important for all Australian businesses to have a thorough understanding of the way in which the ACCC prioritises its enforcement activities, given the highly interventionist and aggressive approach which the ACCC takes to both competition law and consumer protection matters.  Indeed, the ACCC is one of the most aggressive enforcers of the competition law provisions in the world.

Furthermore, the ACCC has been successful in its calls for significant increases to the maximum financial penalties for contraventions of the Australian Consumer Law 2010 (ACL), with the proposed changes likely to be in effect by 1 July 2018.   

It is also important to recognise the strong reputation which the ACCC has amongst consumers as an active and effective regulator. One of the implications of the ACCC’s strong reputation is that any business pursued by the ACCC is usually judged very harshly by the Australian public, the media and their customers.  As a result, businesses which become the subject of an ACCC investigation or legal proceedings brought by the ACCC often suffer significant and long-lasting reputational and brand damage.

This paper will outline the Australian Competition and Consumer Commission’s (ACCC) approach to enforcement and identify the key enforcement and compliance priorities.

Why does the ACCC have priorities?

The main explanation for having priorities is that it provides greater transparency in the way the ACCC will be using its resources. However, there are also important practical reasons for having priorities.

As explained by ACCC in its most recent Annual Report it received 405,382 contacts in the 2016-2017 financial year, of which 234,913 were recorded on the ACCC database.[1]

The following table shows a rough breakdown of how those contact and complaints are processed by the ACCC:

As is apparent, there is no way that the ACCC could pursue all of these complaints. Rather, the only way the ACCC could pursue any of these complaints effectively is by establishing clear and specific enforcement priorities.

While the ACCC received 405,282 contacts last year it was only able to conduct initial investigations into 259 of those complaints. An initial investigation generally involves the ACCC writing a letter to the business which has been complained about, to ask for an explanation of their conduct. This number is significantly lower than in the previous year where the ACCC conducted 427 initial investigations. One explanation for the reduction is that the ACCC is becoming much more selective in the matters it is deciding to pursue.

The ACCC commences in-depth investigations in relation to a much small subset of the total complaints. These are investigations which the ACCC Commissioners have determined are important and need to be pursued in more depth.  These investigations would have been allocated an initial investigatory and/or legal budget and often result in litigation.  The number of in-depth investigations has also declined significantly, from 167 in the 2015-16 financial year to 79 in the last financial year.

Finally, the ACCC listed 24 litigation matters in its 2016-2017 Annual Report. However, if one considered all formal resolutions, such as section 87B undertakings and infringement notices, the total number of formal resolutions is likely to be much higher at around 50 formal resolutions in the 2016-2017 period.

What are the ACCC’s 2017 Enforcement and Compliance Priorities?

ACCC’s Goals
On 20 February 2018, the ACCC released its Compliance and Enforcement Priorities for 2018 (Priorities).[2]  These Priorities must be considered as a whole, as the ACCC takes a multifaceted approach to selecting the matters which it will pursue.

First, the ACCC will consider the overall goals of their legislation. Second, it will consider the outcomes which it is likely to achieve by pursuing a particular enforcement matter and the type of conduct which the relevant business is engaging in.  Finally, the ACCC will determine whether the conduct falls into the specific ACCC 2018 priorities or “hit list”.

As a guiding principle, the ACCC will not pursue any enforcement matter unless it is confident that:

(1)   it can achieve meaningful remedies; and

(2)   the conduct is of a type which has caused or may cause significant consumer detriment, including detriment to small business consumers.

There are many cases where the ACCC could achieve a meaningful outcome but decides not to pursue the matter because the complainant has the resources and motivation to achieve the same outcomes through private action.  Similarly, there are many matters that involve particularly egregious conduct, which the ACCC will not pursue because it will not be able to achieve worthwhile outcomes, for example in relation to some phoenix activity.

The ACCC’s enforcement activity is directed achieving the following three main goals:

·        promoting competition amongst businesses
·        promoting fair trading by business
·        protecting consumers in their dealings with business.

These goals reflect both the competition and consumer law functions of the ACCC, which is to fix market failure and to ensure that consumers have as near to perfect information as possible, so they can make rational purchasing decisions.

ACCC’s 2018 Hit-List
The ACCC has made some changes in the 2018 Priorities document to the way in which it outlined its Priorities in the past. In previous versions of the Priorities, the ACCC would set out the general priority factors before listing the specific priority areas or “Hit List”. 

However, in the 2018 Priorities the ACCC effectively started with its “2018 Hit-List” or the specific areas where the ACCC will be focusing a large proportion of its enforcement resources in the coming year.

The 2018 “Hit List” is as follows:

  • consumer issues in new car retailing, including responses by retailers and manufacturers to consumer guarantee claims, and other matters identified in the ACCC’s 2017 New Car Retailing Industry Report
  • consumer issues in the provision of broadband services, including addressing misleading speed claims and statements made during the transition to the NBN
  • systemic issues involving large or national traders avoiding or misrepresenting consumer guarantee rights
  • competition issues in the financial services sector
  • competition and consumer issues in the provision of energy as an essential service, including matters identified in the ACCC’s retail electricity pricing inquiry report and the ACCC’s wholesale gas inquiry
  • competition and consumer issues concerning the use of digital platformsalgorithms and consumer data, with a focus on emerging markets and matters identified by the ACCC’s digital platforms inquiry
  • ensuring small business receives the protections of industry codes and the unfair contract terms law, with a focus on Franchising Code of Conduct issues involving large or national franchisors
  • ensuring better product safety outcomes for consumers in the online marketplace
  • issues arising from the Takata airbags recall
  • conduct that may contravene the new misuse of market power provisions and concerted practice provisions of the Act
  • competition and consumer issues in the agriculture sector, with a focus on the dairy inquiry, Horticultural Code of Conduct enforcement, and analysis of the viticulture industry
  • competition issues in the commercial construction sector
The interesting aspect of the 2018 Priorities is that many of these Priority areas were identified as Priorities in 2017.   For example, new car retailing, agriculture, commercial construction, unfair contracts, franchising, product safety issues in relation online platforms and broadband speed and performance claims were all identified as Priorities in 2017. This suggests that the ACCC did not achieve everything it wished to achieve in relation to these areas in 2017.

The ACCC has also identified a number of new Priority areas in 2018 - namely:

  • financial services
  • energy
  • digital platforms, algorithms and consumer data
  • Takata airbags recall
  • misuse or market power and concerted practices.

That these specific areas would be Priority areas in 2018 was to be expected.  For example, it was anticipated that financial services would be a priority area given:

  • that the government gave the ACCC additional resources in the 2017-2018 Budget to establish a dedicated Financial Services Unit; and
  • the commencement of the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry in February 2018
The ACCC has also been doing extensive work in the energy sector for some time, through market studies into the areas of gas and electricity.  The inclusion of energy in the 2018 Priorities may suggest that the ACCC will be looking at taking enforcement action in the energy sector in 2018.

Digital platforms, algorithms and consumer data is clearly a priority area in 2018 due to the commencement of the Digital Platforms Enquiry. In December 2017, the Government directed the ACCC to conduct an 18 months investigation into digital platforms, focusing on such companies as Google and Facebook amongst others. 

The ACCC has also had a long running involvement in the Takata airbag voluntary recall. However, the ACCC’s role was escalated significantly in February 2018 when the Assistant Minister to the Treasurer decided to issue a compulsory recall of the Takata airbags.

Finally, the ACCC will be focusing its attention in 2018 on the investigation and enforcement of conduct which is caught by the new changes to the Competition and Consumer Act 2010 (CCA), primarily the changes to the misuse of market power provisions and the introduction of the concerted practices provisions.

One interesting addition to the 2018 Priorities is the reference to “systemic issues involving large or national traders avoiding or misrepresenting consumer guarantee rights”.  It would appear specific area that this has been added to the 2018 Priorities due to a concern within the ACCC about large national traders are continuing to mislead their consumers about their consumer guarantee rights.[3]

There are also a number of industries which were on the 2017 Priority Hit List which can now breathe a collective sigh of relief as they did not make the cut in 2018 – namely:

  • airlines in relation to their consumer guarantees;
  • businesses involved in country of origin labelling;
  • businesses involved in commission-based sales business models; and
  • private health insurers.
Enduring priorities
The ACCC has also adopted a practice of identifying a number of enduring priorities defined as conduct which is so detrimental to consumer welfare and to the competitive process that the ACCC will always regard them as a priority. The enduring priority areas have not changed in 2018:

Cartel conduct

The ACCC will always prioritise cartel conduct causing detriment in Australia. When dealing with international cartels, the ACCC will focus on pursuing cartels that have a connection to, or cause detriment in Australia; that is, cartels that involve Australians, Australian businesses or entities carrying on business in Australia

Anti-competitive conduct 
The ACCC will always prioritise anti-competitive agreements and practices, and the misuse of market power.

Product safety
The ACCC will always prioritise product safety issues which have the potential to cause serious harm to consumers.

Vulnerable and disadvantaged consumers
The ACCC recognises that vulnerable and disadvantaged consumers can be disproportionately impacted by conduct in breach of the Act. The ACCC therefore prioritises conduct that impacts these consumers.

Conduct impacting Indigenous Australians
The ACCC acknowledges that certain conduct in breach of the Act has the potential to specifically impact on the welfare of Indigenous Australians. The ACCC also recognises that Indigenous consumers living in remote areas face particular challenges in relation to asserting their consumer rights. The ACCC will always prioritise its work in these areas while these challenges remain.

Priority factors
Finally, the ACCC outlines the general priority factors which it will weigh up when making a decision to pursue a “non-Priority area” matter. These general priority areas are:
  • conduct that is of significant public interest or concern 

  • conduct that results in substantial consumer or small business detriment 
  • national conduct by large companies, recognising the potential for greater consumer detriment and the likelihood that conduct of large businesses can influence other market participants 
  • conduct involving a significant new or emerging market issue or where our action is likely to have an educative or deterrent effect 
  • where our action will assist to clarify aspects of the law, especially newer provisions of the Act.

The above factors largely duplicate the general priority factors set out in 2017.  Notably two factors which the ACCC will no longer take into consideration when deciding whether to pursue an enforcement action are the blatancy of the conduct and whether the relevant business is a serial offender – both of which appear to be surprising omissions.
Increased ACL penalties
Without doubt the most important development in 2018 will be the introduction of vastly higher penalties for contraventions of the ACL.

Currently, the maximum penalties for contravening the ACL are $1.1 million for corporations and $220,000 for individuals for each contravention.

However, in late 2017, Parliament released the draft amendment bill on ACL penalties.[4] If passed this bill will increase the maximum penalties for civil and criminal contraventions of the ACL to:

  • $10 million; or
  • if the court can determine the total value of the benefit obtained from the offence, three times the value of that benefit; or
  • if the court cannot determine the value of the benefit, 10% of the corporation’s annual turnover in the preceding 12 months. 
The maximum penalties for individuals will increase to $500,000 per contravention.   

These changes are scheduled to take effect from 1 July 2018.

As is apparent, this amendment represents a quantum leap in terms of the size of penalties which may be awarded by the Court for contraventions of the ACL.  This change should be of particular concern for businesses with a history of previous contraventions of the ACL.  Courts are much more likely to impose multi-million-dollar penalties against companies which have engaged in multiple prior contraventions of the ACL.

In order to minimise risks and avoid problems with the ACCC (and other State and territories regulators) it is important for businesses to conduct a detailed Competition and Consumer Law Risk Assessment of every aspect of their operation. This would start with an identification of all risks in the business both from a:

  1. competition perspective – for example, the nature of all agreements with competitors, suppliers and service providers, and other third parties and
  1. consumer law perspective – for example, the representations made to consumers in marketing and promotional materials, the fairness of standard form contract terms and how complaints handling procedures are managed
Once the business has conducted detailed Competition and Consumer Law Risk Assessment, businesses should take steps to implement a comprehensive and up-to-date Compliance Program, consisting of the following elements:

  1. Compliance Policy
  1. The appointment of a Compliance Officer
  1. Other relevant policies such as a Complaints Handling Policy and a Whistle-blower Policy
  1. The establishment of an effective Complaints Handling procedure and
  1. Regular Competition and Consumer Law Compliance Training.
Taking steps to conduct a Risk Assessment and implement a Compliance Program will benefit the business by helping them to better identify and manage all competition and consumer law risks in the business. Taking these steps will also benefit the business in terms of mitigating the extent and severity of the much larger pecuniary penalties which the ACCC will be seeking from the Courts for ACL contraventions in second half of 2018.

[1] ACCC, ACCC – AER Annual Report 2016-2017, Commonwealth of Australia, p 143 at
[3] Rod Sims, 2018 compliance & enforcement priorities, Speech presented at CEDA Sydney, 20 February 2018 at

Tuesday, 21 August 2018

CFMMEU - Three court losses and counting

Image result for cfmmeu

ACCC has commenced criminal proceedings against the Construction, Forestry, Maritime, Mining and Energy Union (CFMMEU) and its ACT Divisional Branch Secretary, Jason O’Mara, in relation to alleged cartel conduct.  This is a pretty significant escalation of the ACCC's union enforcement activities.
Things seem to be going from bad to worse for the CFMMEU at the moment. They have already lost three court cases this month (and the month is only half way through!) -  Australian Building and Construction Commissioner v Construction, Forestry, Maritime, Mining and Energy Union (The Bendigo Theatre Case) (No 2) [2018] FCA 1211 

Australian Building and Construction Commissioner v Ravbar [2018] FCA 1196 

Construction, Forestry, Maritime, Mining and Energy Union v Australian Building and Construction Commissioner (The Broadway on Ann Case) [2018] FCAFC 126

Wednesday, 15 August 2018

When is a cartel not a cartel - when it is exclusive dealing

ACCC has settled with Palram and Ampelite for $5.5 million.  Interestingly the ACCC actually settled on the basis of exclusive dealing and not cartel conduct.  This is surprising given all the hullabaloo which the ACCC made when it commenced the case stating that the companies had engaged in cartel conduct: "The ACCC alleges that over a five year period from 2008 until 2013, these companies made and gave effect to a number of cartel arrangements which had the purpose of preventing or restricting the supply of polycarb to retailers." So it seems to me that the ACCC took legal proceedings believing that there were a number of cartel arrangements, but then failed to obtain the evidence to prove the existence of those arrangements. Accordingly, the ACCC had to settle on the vertical agreements. Looks like a pretty major evidentiary fail for the ACCC.  The ACCC  should have the evidence of the alleged horizontal agreements locked in prior to the commencement of the legal proceedings   The ACCC also noted in its media release the anti-overlap provisions of the Competition and Consumer Act 2010 which effectively state that if conduct can be characterised as both horizontal (more serious) and vertical (less serious), the ACCC has to pursue the conduct as vertical.

Thursday, 9 August 2018

Fels' ASIC broadside

Allan Fels

Professor Allan Fels won't be making many friends at ASIC after these statements to the ABC and Channel 9. However, he is probably right.   While I specialise in the ACCC area, I do some work in Corporations Law space and it is fair to say that clients have nowhere near the same level of concern about ASIC enforcement action as they do about ACCC enforcement action.   I have found that clients genuinely fear the possibility of the ACCC taking enforcement action against them and particularly the media storm which inevitably follows. However, I think most clients consider ASIC enforcement action to be a remote possibility in all but the most egregious cases.   And even in the most egregious cases, many clients would like their chances of settling with ASIC through an enforceable undertaking rather than worrying about a litigated outcome.

Wednesday, 8 August 2018

Stepping Over the Line?

It seems to me that Justice North's comments about the Australian Building and Construction Commission's case against CFMEU officials may have gone too far: "the ABCC should be publicly exposed as having wasted public money without a proper basis for doing so..." ' was a completely unnecessary waste of public money" "If you want to make a case that the ABCC should not be criticised, well, you know, let’s hear – bring it on." "I must say it's a terrible waste of everybody's time." "...external forces that are beating up what's just a really ordinary situation that amounts to virtually nothing." He also described the ABCC's decision to take legal action as "outrageous"  I remember Justice North making similar comments 20 years ago about the ACCC's case against the Maritime Union of Australia during the Waterfront Dispute. At that time he said that our case was a waste of public money. 

This was after the MUA had taken illegal boycott action to close down half of Australia's ports and after the MUA had called on its overseas affiliated unions particularly in the US to take sympathy boycott action against vessels loaded with non-union labour.

Click in this link to see the recent article in the Sydney Morning Herald:

Here is a story from the Canberra Times, 12 June 1998, p4 about Justice Norths's comments about the MUA case:

Tuesday, 7 August 2018

Podcast: Alphabet in the Soup: A Snapshot of the EC's three investigations into Google - Part 2

Here is Part 2 of the Podcast entitled "Alphabet in the Soup: A Snapshot of EC's three investigations into Google". In this episode I explain the Adsense investigation and make some concluding remarks.

Click on this link to hear the Podcast -

Podcast: Alphabet in the Soup: A Snapshot of the EC's three investigations into Google - Part 1

I thought I would try my hand at some Podcasting.  While I still have some way to go in terms of professionalism and production values (and also preventing the kids from Podcast-bombing during a recording!), I hope you will find the content informative. Here is Part 1 which provides a snapshot of the European Commission's three major investigations into Google - (1) comparison shopping (2) Android Operating System and (3) Adsense. Hope you enjoy the content!

Click on this link to hear the Podcast -

Top Australian Law Blog?

Came across a website which listed my Blog as one of the Top 25 Australian Law Blogs - apparently I came in at 15th place!

Not too sure if it is on the up and up, but they did say I could use the following image on my blog, so why not!

Monday, 6 August 2018

De Ja Vu...all over again! Qualcomm SEP penalties

Image result for de ja vu all over again

I was reading an interesting article entitled "The Global Standards Wars: Patent and Competition Disputes in North America, Europe and Asia" by Jorge Contreras.
I was surprised to read how many actions have been taken against Qualcomm for repeated misuses of its Standard Essential Patents (SEP): 2009 - Korean Fair Trade Commission - fine $US208 million 2013 - China's National Development and Reform Commission - fine $US975 million 2016 - Korean Fair Trade Commission (again)- fine $US853 million 2017 - Taiwanese Fair Trade Commission - fine $US774 million 2018 - European Commission - fine $US1.2 billion Total fines (so far) - $US4.01 billion! Furthermore, in 2016 the US Federal Trade Commission commenced legal proceedings against Qualcomm for the alleged misuse of its SEP's. So much for huge fines achieving specific deterrence!