Competition and Consumer Law Update – January – March 2025 Edition

The Full Federal Court has dismissed Ultra Tune Australia Pty Ltd’s (Ultra Tune) appeal of a March 2024 decision of the Federal Court, which found Ultra Tune to be in contempt of court and imposed $1.5m in fines for four separate instances of contempt. These instances related to Ultra Tune’s failure to comply with Court orders made in 2019. Ultra Tune’s appeal focussed on two grounds: lack of authority by the Court to impose penalties for contempt as the original orders did not specify the consequences of non-compliance and the miscalculation of fines. Both arguments were dismissed by the Full Court, which held that the fine was not “manifestly excessive, taken alone or as a total penalty”, given the seriousness of Ultra Tune’s contempt and the fact that the nature of the instances of contempt were “a reflection of [Ultra Tune’s] corporate character”.

The ACCC media release can be viewed here and the judgment, which was handed down in January 2025, can be viewed here. Our previous coverage of the Federal Court’s findings relating to Ultra Tune’s contempt of court can be viewed here.

The ACCC has commenced proceedings in the Federal Court against Bradford Exchange Ltd (Bradford), a global retailer of coins and memorabilia, for allegedly making over 300 false or misleading representations in its newspaper and magazine advertisements.

The ACCC has alleged that many of these advertisements, which were for collectable coins and ingots, amounted to a ‘subscription trap’ by representing that Bradford would send customers only one item whereas it would, in fact, continue to send items after that first item pursuant to a subscription for which it charged its customers. Often these subsequent items were far more expensive than the initial item. This resulted in customers thinking they had bought one item whereas they had agreed to an ongoing subscription and being charged accordingly (often receiving reminders to pay the subscription amounts and ultimately being referred to a debt collection agency if those amounts were not paid).

The ACCC considers Bradford’s actions have “deprived customers of the ability to make an informed choice about whether to buy an entire collection of items.” The media release can be viewed here.

The ACCC has released its final report as a result of its supermarkets enquiry.  The ACCC found that ALDI, Coles, and Woolworths are some of the most profitable supermarket businesses among their global peers, and that average product margins have increased over the past five financial years. In addition, the domination of Coles and Woolworths in the Australian supermarket industry is leading to poorer outcomes for consumers and suppliers than would be expected in a more competitive environment.

The final report has made 20 recommendations, which include clearer pricing practices, greater transparency for suppliers, and reforms to planning and zoning laws. These recommendations are intended to make a difference for consumers and give suppliers fairer bargaining conditions.

Key findings

Key findings from the inquiry relate to:

• consumer preferences and strengthening competition over the short, medium and longer term;
• the competition benefits that will be provided by the new merger regime;
• reducing consumer burden when making shopping decisions regarding pricing, promotions and loyalty programs;
• improving price visibility in remote areas; and
• greater transparency of supply forecasts for fresh produce suppliers.

More specifically, the ACCC found that, within Australia’s supermarket industry:

• consumers value convenience as a key determinant in their choice of supermarket, though some also compare prices and shop around more than in the past.
• there are significant barriers for new or smaller supermarkets to enter the industry and expand at a large scale, including in planning and zoning requirements.
• due to their significant size, reputation, and financial resources, Coles and Woolworths have advantages in competing for suitable retail sites, making it extremely difficult for potential rivals to find and secure retail sites.
• there is a lack of notice of price increases to consumers, including by way of ‘shrinkflation’ (where consumers pay the same amount for a product of smaller size or reduced volume than was previously offered).
• higher freight costs and a lack of competition in servicing regional and remote areas are likely the primary reasons for higher prices in these areas. This results in reduced range, store amenity, opening hours, and service quality in regional and remote areas as compared to more competitive metropolitan areas.
• there is a significant bargaining power imbalance between Coles and Woolworths and some suppliers, with Coles and Woolworths exercising this buyer power through their trading terms and business processes and practices.

The final report from the supermarkets inquiry can be found here.

Key recommendations

The ACCC recommends, among other things, that supermarkets – particularly ALDI, Coles, and Woolworths – be required to:

• publish their prices on their websites, and Coles and Woolworths also make available application program interfaces that provide dynamic price information to third parties such as online price comparison tools.
• provide greater transparency regarding pricing, promotions and loyalty programs to reduce the burden on consumers when they try to understand the value for money of supermarket offers.
• implement measures to increase price transparency and complaints handling in remote areas, and that all levels of government consider supporting community-owned and run stores in remote areas where there is limited or no choice of supermarkets.
• provide fresh produce suppliers with greater transparency about the weekly tendering processes they use to negotiate price and volumes with suppliers.

The ACCC media release including thee full list of the ACCC’s 20 recommendations can be viewed here.

The new mandatory Food and Grocery Code of Conduct came into effect on 1 April 2025, and applies to Australian supermarkets and grocery wholesalers that earned over $5 billion from their supermarket or grocery wholesaling business in the previous financial year. Suppliers to these retailers and wholesalers are automatically protected by the Code. Obligations under this Code include a requirement to have written supply agreements, to act lawfully and in good faith in dealings with suppliers, and to ensure suppliers do not face retribution for exercising their rights under the Code. Consequences for breaching the Code include a maximum penalty of $10 million, three times the value of the benefit derived from the contravention, or 10% of the company’s turnover during the preceding 12 months, whichever is greater, per contravention.

The ACCC media release relating to the enactment of the new Code can be found here.

The ACCC has authorised Coles, Woolworths, and ALDI to continue collaborating to recycle stockpiled soft plastics and implement a pilot in-store collection program until 31 July 2026. Interim authorisation was first granted in November 2022 following the collapse of REDcycle, a soft plastics recycle program used by these supermarkets. Part of this authorisation involves processing the remaining REDcycle legacy stockpiles, though the authorisation does not include any provision regarding the conduct of the supermarkets and their program partners regarding any proposed industry-led stewardship scheme for any long-term soft plastics solution. The ACCC media release can be found here.

Australia’s new merger regime comes into effect on 1 January 2026.

Under the upcoming new regime, all acquisitions that meet a prescribed threshold must be notified to the ACCC from 1 January 2026. From 1 July 2025, businesses have the option to start using the new regime on a voluntary basis and the ACCC has released guidelines on the transitional arrangements, aimed to clarifying businesses can engage with the ACCC on their mergers throughout 2025, and what might happen in various scenarios. The ACCC media release can be viewed here, and the transitional arrangement guidelines can be found here.

The ACCC has released the following documents for consultation in advance of the new merger regime coming into force:

• Draft merger process guidelines and a similar quick guide. Together, these documents attempt to assist businesses, advisers, and other stakeholders in understanding Australia’s new merger regime. The ACCC media release can be viewed here. The draft guidelines, quick guide, and submission portal can be viewed here.
• Draft merger assessment guidelines outlining the analytical framework that will be applied when the ACCC assesses notified acquisitions under the new merger regime. This reflects best practice for competition assessments. The ACCC media release can be viewed here, and the draft guidelines can be downloaded here for review.

The Scams Prevention Framework Bill, a piece of world-first legislation which sets out consistent and enforceable obligations for businesses in key sectors in which scammers operate, passed both Houses of Parliament, received Royal Assent and came into effect in February 2025. Under the Scams Prevention Framework, the ACCC is empowered to investigate potential breaches and take enforcement action where businesses have not taken reasonable steps to fulfil their obligations under the Framework. Banks, certain digital platforms, including social media, and telecommunications providers will be the first sectors required to comply with this legislation. Business failing to meet their obligations under the new Framework can face fines of up to $50 million.

The ACCC media release can be viewed here. The text of the Bill can be found here.

In 2022, the ACCC accepted a joint functional separation undertaking given by TPG Telecom Limited on behalf of the TPG Retailers and TPG Wholesalers under part 8 of the Telecommunications Act.  The effect of this undertaking was to ensure separation of TPG’s wholesale and retail businesses, as required by the carrier separation rules under the Telecommunications Act. The ACCC issued TPG with a $75,120 fine in relation to four alleged failures to comply with this undertaking, including that TPG had failed to have measures in place to prevent staff of its wholesale and retail businesses from accessing the other’s premises unless accompanied to the extent practicable while on the premises. The staff separation obligations under this undertaking are intended to prevent staff from the two businesses from sharing sensitive information that could favour TPG’s own retail operations over third-party retailers on its Vision Network. TPG paid the fine in March 2025.  The ACCC media release can be viewed here.

In February 2025, the ACCC published a summary of the results of a sweep of over 2,000 Australian retail websites, finding some businesses were using terms and conditions that may contravene the ACL.  Problematic statements found by the ACCC included:

• imposing time-limits for returning a faulty product;
• imposing blanket ‘no refund’ conditions on sale or specialised items, or opened or used items;
• referring to manufacturer warranties as the only avenue for consumers to claim remedies for faulty goods, and
• placing restrictions on consumers’ right to a remedy, including stating that delivery fees paid for faulty items were non-refundable and charging restocking fees if customers returned faulty items.

As a result of the sweep, the ACCC issued several warning letters to businesses.  According to the ACCC, its action led to most of the businesses changing or removing concerning statements.

As set out in the ACCC press release, under the ACL, businesses should not be making statements, written or verbally, to the following effect about faulty products:

• No refunds are permitted under any circumstances.
• No refunds are provided for sale or specialised items.
• To be eligible for a refund, the consumer has a limited timeframe, from receipt of the good, to return the product.
• Returns will be subject to a processing, restocking or repair fee.
• No refunds are provided for opened or used items under any circumstances.
• Delivery fees are non-refundable
• Customers must pay for delivery for returned items.

The ACCC media release can be viewed here.

Australia’s four largest airports, Brisbane, Melbourne, Perth and Sydney have each reported record aeronautical revenues at $2.6 billion in 2023-24 despite collectively handling fewer passengers than before the pandemic. The 24.3% increase in revenues appears to be largely attributable to the continued recovery in international passenger numbers, with some growth in domestic passengers. Sydney, Melbourne, and Brisbane airports also substantially increased their operating profits from aeronautical activities. The ACCC media release can be viewed here.

The ACCC has announced its 2025-26 compliance and enforcement priorities, which have been shaped by the cost of living and the digital economy. These are:

1. Competition issues in the supermarket and retail sector, focussing on the firms with market power and conduct impacting small businesses.
2. Consumer and fair trading concerns in the supermarket and retail sectors, focussing on misleading pricing practices.
3. Promoting competition in essential services with a focus on telecommunications, electricity, and gas.
4. Competition and consumer issues in the aviation sector.
5. Competition, product safety, consumer and fair trading issues in the digital economy, particularly misleading or deceptive advertising within influencer marketing, online reviews, in-app purchases, and unsafe consumer products.
6. Misleading surcharging practices and other add-on costs.
7. Consumer, fair trading, and competition concerns in relation to environmental claims and sustainability, with a continued focus on greenwashing.
8. Unfair contract terms in consumer and small business contracts, with a focus on harmful cancellation terms, including those associated with automatic renewals, early termination fee clauses and non-cancellation clauses.
9. Improving industry compliance with consumer guarantees, with a focus on consumer electronics.
10. Improving compliance by NDIS providers with their obligations under the Australian Consumer Law.
11. Consumer product safety issues for young children, with a focus on compliance with button battery standards and raising awareness about new infant sleep and toppling furniture standards.

The full ACCC priorities announcement can be viewed here, and a summary of these compliance and enforcement priorities can be found here.