2024 Competition and consumer law wrap up

Table of contents

• Introduction
• Merger law reform
• Changes that commenced in 2024
• Changes commencing in 2025 and 2026
• Changes in the pipeline
• Key competition and consumer cases in 2024
• Happy holidays

Introduction

Did you know that there were over 50 developments in competition and consumer law & regulation in 2024?

The changes (and proposed changes) related to mergers, supermarkets, safety standards, penalties, the Consumer Data Right, scams, digital competition laws, unfair trading practices, card surcharges, franchising, consumer guarantees, a right to repair, AI, aviation, the environment, and suing for overseas conduct.

Keep on top of the changes with our progress update tables available in CCH iKnowConnect for paid subscribers of Competition and Consumer Law.

Here’s a snapshot of key competition and consumer cases and law reform developments in 2024 and a peek at what’s coming in 2025 and beyond.

Merger law reform

An amending Act that overhauls Australian merger laws received assent on 10 December 2024: Treasury Laws Amendment (Mergers and Acquisitions Reform) Act 2024 (Cth).

From 1 January 2026, acquirers must notify the ACCC about proposed mergers that exceed certain thresholds or fall into particular categories. These mergers will need ACCC approval before they can be completed.

This is the biggest change to Australia’s merger laws in 50 years. Currently, Australia’s merger laws do not require merger parties to notify the ACCC or wait for ACCC clearance. The changes to merger laws are relevant to businesses contemplating a merger, and also their competitors, suppliers and customers.

The merger will be void if the merger parties purport to complete a notifiable merger without notifying the ACCC and obtaining the ACCC’s approval. The merger will also be void if the merger parties purport to complete it while a Tribunal review is ongoing, or if 12 months have elapsed since the ACCC’s approval.

Changes that commenced in 2024

• Safety standards can now incorporate updated international standards: Safety standards and information standards can now incorporate material in international standards as they exist from time to time. Schedule 2 of the Treasury Laws Amendment (Fairer for Families and Farmers and Other Measures) Act 2024 (Cth) commenced on 11 December 2024.
• Voluntary AI safety standard published 5 September 2024: Department of Industry, Science and Resources. See also “Mandatory guardrails for high-risk AI” and “AI and ACL” in “Changes in the pipeline” below.
• Baby sleep products safety standard commenced 19 July 2024. There is an 18-month transition period. It expands on the repealed safety standards for household cots and portable folding cots: Consumer Goods (Infant Sleep Products) Safety Standard 2024, 15 July 2024. See also “Baby products information standard” in “Changes commencing in 2025 and 2026” below.
• National Competition Policy agreement reached: On 29 November 2024, Australian, state and territory treasurers agreed to a 10-year reform of the National Competition Policy, including modern methods of construction, adoption of international safety standards, “right to repair” reforms and commercial zoning.
• Consumer Data Right (CDR):
  • Action initiation: The Treasury Laws Amendment (Consumer Data Right) Act 2024 (Cth) commenced 27 August 2024. It helps consumers and small businesses switch providers and make payments. However, the government will “not rush to declare new action types”.
  • Consent, simplification, trial: Commencing 12 November 2024, the CDR Rules were amended to: allow consents to be bundled; simplify the requirements for an accredited bank seeking data from a consumer; and extend a trial of CDR-enabled energy products to 24 months and 2,000 customers: Competition and Consumer (Consumer Data Right) Amendment (2024 Measures No 1) Rules 2024 and media release.
• Penalty units increased from $313 to $330 for Commonwealth offences committed on or after 7 November 2024, Crimes and Other Legislation Amendment (Omnibus No 1) Act 2024 (Cth).
• Designated complainants appointed: CHOICE, Consumer Action Law Centre & Council of Small Business Organisations Australia can complain to the ACCC about significant or systemic market issues. The ACCC must publicly respond within 90 days. Designated complaints laws commenced 1 May 2024: Pt XIE (Designated complaints) of the Competition and Consumer Act 2010 (Cth), Competition and Consumer (Designated Complaints) Determination 2024 (Cth).
• “Free range” & H5N1: If government regulations require poultry to be housed indoors due to a declared outbreak of avian influenza H5N1, egg and poultry meat producers can keep using “free range” labels for up to 90 days without the risk of ACCC enforcement action: ACCC, ACCC publishes ‘free range’ labelling guidance for poultry industries for a potential H5N1 outbreak, 136/24, 13 November 2024.
• Telecommunications: The ACCC published the ACCC Telecommunications (Infringement Notices) Guidelines 2024.
• UK and Australia cooperate to fight scams: Australia’s ACMA and the UK’s Office of Communications (Ofcom) announced a new Framework for Practical Cooperation to combat phone scams, spam and unsolicited calls on 3 December 2024.

Changes commencing in 2025 and 2026

• Merger law reform: As discussed above, from 1 January 2026, mergers will need to be notified to the ACCC and will need ACCC approval if they exceed certain thresholds or fall into particular categories. Businesses can voluntarily use the new system from 1 July 2025.
• Higher penalties for Food and Grocery Code: Commencing 1 April 2025, Sch 4 of the Treasury Laws Amendment (Fairer for Families and Farmers and Other Measures) Act 2024 (Cth) increases the maximum penalty and infringement notice penalty for the Food and Grocery Code. It slightly increases the infringement notice penalty for other industry codes. Regulations to make the new mandatory Food and Grocery Code will be made in 2024. The new Code will commence from 1 April 2025. Consultation on the draft regulations ended on 18 October 2024. The new code will be mandatory and include penalties.
• Supermarket & retail: The ACCC will get an extra $30 million funding over 3.5 years from 1 January 2025 for investigations and enforcement of the supermarket and retail sector: ACCC, ACCC welcomes additional retail sector enforcement funding, 119/24, 1 October 2024.
• Franchising Code changes: Commencing 1 April 2025, the 2024 Franchising Code extends 2 requirements to all franchisees (not just new motor vehicle dealerships): (1) compensation for early termination and (2) reasonable opportunity for return on investment. The 2024 Code also simplifies the termination provisions for serious breaches by franchisees; merges the key facts sheet into the disclosure document; lets existing franchisees opt-out of a cooling off period and opt-out of receiving disclosure documents; and adds a 600 penalty unit penalty to substantive obligations that previously did not have penalties. Franchisors have a grace period up to 1 November 2025, to comply with new requirements relating to (1) disclosure documents, (2) compensation for early termination & reasonable opportunity for return on investment for franchise agreements (that are not new vehicle dealership agreements), and (3) specific purpose funds that are not marketing funds or other cooperative funds. The Competition and Consumer (Industry Codes—Franchising) Regulations 2024 was made on 5 December 2024. See also “Franchising licensing — Consultation” in “Changes in the pipeline” below.
• Financial incentive for digital platforms to make deals with news publishers: Meta (Facebook), ByteDance (TikTok) and Alphabet (Google) will need to pay a multi-million dollar charge if they do not voluntarily enter or renew commercial agreements with Australian news media businesses. This News Bargaining Incentive is intended to commence from 1 January 2025, but consultation and legislation is still needed. The incentive was announced on 12 December 2024. A consultation paper is expected in early 2025. The incentive will impose a fully offsetable charge “in the millions, not the billions” on significant social media platforms and search engines with an Australian-based revenue more than $250 million. Offsets will be available if digital platforms make or renew commercial deals with news publishers. The offsets will be set at a level so that digital platforms will pay less if they strike deals with news publishers than if they have to pay the incentive charge.
• CDR: Non-bank lending: The Consumer Data Right will expand to non-bank lending in early 2025. It is intended to be operational by mid-2026. Product data sharing obligations start 13 July 2026. Consumer data sharing obligations start in 4 phases from 9 November 2026 until 13 September 2027: Australian government, Information sheet: Expanding the CDR to non-bank lending and narrowing the scope of CDR data in banking, November 2024. See also “CDR non-bank lending and banking scope” in “Changes in the pipeline” below.
• Baby products information standard commences 19 January 2026. It covers sleep products and inclined products: Consumer Goods (Infant Products) Information Standard 2024, 15 July 2024.
• Toppling furniture information standard commences 4 May 2025: Consumer Goods (Toppling Furniture) Information Standard 2024, registered 3 May 2024.
• E-bikes in NSW: From 1 February 2025, lithium-ion battery powered e-bikes, e-scooters, hoverboards and e-skateboards must meet mandatory safety standards before they can be sold in NSW. Testing and certification requirements will be enforced from August 2025. Labelling requirements will be enforced from February 2026: NSW Government Gazette No 298 of 2 August 2024, p 12–16.
• Environmental Claims Code: The Australian Association of National Advertisers (AANA)’s new Environmental Claims Code will come into effect on 1 March 2025. AANA runs Australia’s advertising self-regulation system. See our Advertising checklist available to paid subscribers on CCH iKnowConnect – Competition & Consumer Law.
• Scam protection — SMS Sender ID Register coming: A mandatory SMS Sender ID Register is expected to open for registration of Sender IDs from late 2025: Minister for Communications and Assistant Treasurer, Better protections for Australians from SMS scams, 3 December 2024. The Telecommunications Amendment (SMS Sender ID Register) Act 2024 (Cth) received assent on 5 September 2024. It will commence 6 months after assent, or earlier by proclamation. See also “Scams — Bill” in “Changes in the pipeline”.

Changes in the pipeline

These law reforms are still at the announcement, consultation, draft or Bill stages.

• New digital competition laws — Consultation: The Australian Treasury is consulting on a proposal to introduce upfront broad obligations and service-specific obligations for designated large digital platforms with significant market power, eg restrictions on self-preferencing and tying, removing barriers to switching to a competitor, fair treatment of business users and more transparency. Maximum penalties would be the greatest of: $50 million, 3 times the benefit or 30% of turnover during the breach period. Feedback is due by 14 February 2025.
• Unfair trading practices — Consultation: Treasury is consulting on a new general prohibition on unfair trading practices that are likely to unreasonably distort or manipulate a consumer’s economic decision-making or behaviour and cause material detriment. A “grey list” of examples include: material information omitted or given in unclear, unintelligible, untimely or overwhelming way; obstacles to exercise of consumer’s rights; online interfaces designed to unduly pressure, obstruct or undermine a consumer in making an economic decision. Treasury is also consulting on new specific prohibitions focused on: subscription traps, drip pricing, dynamic pricing, online account requirements and barriers to accessing customer support. The consultation ends 13 December 2024.
• New penalties for consumer guarantees — Consultation: The Treasury consulted on new penalties for suppliers refusing refunds etc & manufacturers not reimbursing suppliers or retaliating against suppliers. The consultation ended on 14 November 2024. The reform proposal will be finalised in H1 2025. Treasury consulted on whether the penalties should be limited to major failures, new motor vehicles or higher value goods and services.
• Ban debit card surcharges & Excessive surcharges crackdown — Announcement: The Australian government is prepared to ban debit card surcharges from 1 January 2026, subject to consultation by the RBA and safeguards to lower costs for small businesses and consumers. The ACCC will get $2.1 million extra funding to crack down on excessive card surcharges, in-store and online. The announcement was made on 15 October 2024.
• Franchising licensing — Consultation: A consultation on a licensing regime for the franchising sector ended 8 December 2024.
• Right to repair: The Australian government will develop a general right to repair, including for the agriculture sector. This was announced on 13 November 2024 and elaborated on 29 November 2024.
• AI and ACL: Treasury consulted on whether the Australian Consumer Law remains suitable to protect consumers who use Artificial Intelligence. The consultation ended 12 November 2024.
• Mandatory guardrails for high-risk AI: The consultation ended on 4 October 2024. The first 9 proposed mandatory guardrails are the same as the first 9 voluntary guardrails in the Voluntary AI Safety Standard (mentioned above). The 10th mandatory guardrail relates to conformity assessments, while the 10th voluntary guardrail relates to stakeholder engagement.
• Supermarkets — ACCC consulting on regulatory options & other key issues: Options to address consumer concerns about supermarkets include regulating price representations and requiring supermarkets to (1) make prices available to comparison websites, (2) notify consumers when products shrink and (3) publish information about their promotions. These are some of the options outlined by the ACCC in its Interim Report on its Supermarkets inquiry, 27 September 2024. The ACCC consulted on supermarket price setting practices, profitability and margins, grocery supply chains, retail competition and consumer experience up to 18 October 2024. The ACCC’s Final Report is due to the Treasurer by 28 February 2025.
• Unit Pricing Code penalties — Announcement: Substantial penalties for supermarkets will be introduced. The Australian government will consult on consistent use of units of measure, cross-retailer price comparisons, expanding the Code to cover more retailers, and more specific prominence and legibility requirements. The announcement was made on 2 October 2024.
• QLD Grocery & planning: The Queensland government consulted on opportunities to promote competition in the supermarket and grocery sector through its planning framework. The consultation ended on 12 November 2024.
• CDR non-bank lending and banking scope — Draft rules: Treasury consulted on a new “de minimis” threshold ($1 billion and 1,000 customers) and narrowing the scope for compulsory data sharing. It would be voluntary for: asset finance (except standard auto finance), consumer leases, foreign currency accounts, margin loans and reverse mortgages. The consultation also proposed reduced requirements to share historical data. There would be no requirement to share consumer data about a transaction that occurred more than 2 years before the request. The consultation ends 24 December 2024.
• CDR will become more targeted — Announcement: The government will focus on high value use cases, narrow CDR data, limit data standards changes & ban screen scraping.
• Aviation — Announcement: The Aviation White Paper—Towards 2050 (26 August 2024) proposed: legislating an Aviation Industry Ombuds Scheme; a new Aviation Customer Rights Charter (covering refunds and length of unreasonable delays) which complements the Australian Consumer Law; changes to the Sydney Airport slot regime; a new “recovery hour” at Sydney Airport; opening Western Sydney Airport in 2026; and revising the principles for the aeronautical pricing negotiation. The Productivity Commission will consider (1) negotiate-arbitrate regime for aeronautical pricing (2) “use it or lose it” rule for slots (3) limit on grandfathering of slots. The White Paper also proposed consulting on implementing an enhanced version of the ACCC’s monitoring of pricing and service quality at Australia’s major airports; publishing more data; and reviewing government travel purchasing policies.
• Australian Energy Regulator (AER): A new Bill proposes legally separating the AER from the ACCC. The Competition and Consumer Amendment (Australian Energy Regulator Separation) Bill 2024 (Cth) was introduced to parliament on 20 November 2024.
• Sustainability collaborations: The ACCC consulted on a draft guide to help businesses use ACCC authorisations to protect against competition law breaches when cooperating to improve the environment. Feedback closed on 26 July 2024,
• Non-compete clauses: Consultation on an Issues Paper ended on 31 May 2024.
• Scams — Bill: The Scams Prevention Framework Bill 2024 (Cth) was introduced into parliament on 7 November 2024. It implements a multi-regulator Scams Prevention Framework including sector-specific codes and 2 tiers of civil penalties. It is intended to apply to social media companies, banks and telecommunications providers.
• Suing for overseas conduct — Draft Bill: The draft Treasury Laws Amendment Bill 2024: Minor and technical Amendments (Spring 2024) proposes repealing the requirement for Ministerial consent where a person seeking damages or compensation due to a breach of the Australian Securities and Investments Commission Act 2001 (Cth) seeks to rely on evidence of overseas conduct. The consultation ended on 11 October 2024.

Key competition and consumer cases in 2024

• High Court clarifies consumer guarantee laws: The High Court held that reduction-in-value damages for breaches of consumer guarantees should be assessed at the time of supply. The date for assessment should not be changed to avoid “over-compensation”. The value of the car at the time of the trial had limited relevance. There is no requirement to establish loss in addition to the “reduction in the value of the goods” under s 272(1)(a) of the Australian Consumer Law. If a fix for the defective goods is later developed, this must be taken into account, along with the “effectiveness, cost, inconvenience and timing of any repair of a defect”. Two class actions brought by car buyers largely succeeded against Toyota and Ford in 2 High Court cases: Williams v Toyota Motor Corporation Australia Ltd; Toyota Motor Corporation Australia Ltd v Williams [2024] HCA 38 and Capic v Ford Motor Company of Australia Pty Ltd [2024] HCA 39.
• High Court confirms systemic unconscionable conduct by Captain Cook College: The High Court held that Productivity Partners (trading as Captain Cook College) engaged in an unconscionable system of conduct in breach of s 21 of the Australian Consumer Law. Its acting CEO (Blake Wills) and parent company (Site) were accessorily liable. The essence of the College’s unconscionable conduct was that it removed 2 system controls or safeguards which protected students from misconduct by recruiters and from enrolment in courses for which the students were unsuitable, for the purpose of increasing the College’s profit. Key issues discussed by the High Court included: (1) the approach to the s 22 factors, (2) the role of intention in a system of unconscionable conduct and (3) the knowledge needed for accessorial liability. Productivity Partners Pty Ltd v ACCC [2024] HCA 27.
• High Court: Proportionate liability laws for misleading conduct applied in arbitration: A majority of the High Court held that Pt VIA (Proportionate liability for misleading or deceptive conduct) of the Competition and Consumer Act 2010 (Cth) applies in an arbitration conducted under the Commercial Arbitration Act 2011 (SA). The inability to join all alleged concurrent wrongdoers to the arbitration did not mean that the proportionate liability laws did not apply. Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24.
• No misuse of market power in electricity market: The court held that Stanwell and CS Energy did not have substantial market power, whether individually or together. Stanwell and CS Energy did not engage in “Short-notice Rebidding” in relation to the electricity they offered in the Queensland Region of the National Electricity Market. The statistical insignificance of the number of occasions where Stanwell and/or CS Energy were allegedly successful in price spiking was overwhelming evidence that the price spikes were transient and could not support an inference that they had substantial market power. There was nothing per se objectionable in rebidding close to the start of a Trading Interval or Dispatch Interval. The case was not about late rebidding, but rather the deliberately late timing of rebids. It was impossible for traders to know whether their rebids would cause a price spike, whether immediately or at all. It was difficult, if not impossible, to attribute to a trader an intention to thwart the effect of a competitor’s rebid when they were flying blind as to their competitor’s position. Traders had a compelling reason to wait to make rebids until shortly before the rebid was to take effect — to increase their confidence in their forecasts and minimise the risk of the rebid being unprofitable. Stillwater Pastoral Company Pty Ltd v Stanwell Corporation Ltd [2024] FCA 1382.

One of the best ways to keep in touch with the latest developments is our What’s New feature available in CCH iKnowConnect. It provides customers with a quick snapshot of what’s new for commentary, cases and practical tools (including case tables) in the past 6 months.

Learn more about CCH iKnowConnect and our Competition & Consumer Law in-depth coverage here.

Happy holidays

The Wolters Kluwer editors would like to wish all our customers a very happy holiday season and a safe and successful 2025.

We will run a limited news service from Wednesday 11 December 2024. Your full news service will resume after Australia Day 2025. For updates on any new developments, visit Wolters Kluwer Expert Insights or follow “Wolters Kluwer Australia” on X, LinkedIn or Facebook. We look forward to bringing you detailed stories on new legal developments in the new year.

This article was published on 10 December 2024 and updated on 13 December 2024 via CCH iKnowConnect, Wolters Kluwer’s award-winning tax and legal research platform.