Competition and Consumer Law Update – October – December 2024 Edition

The Federal Court has ordered Qantas to pay $100 million in penalties for misleading consumers by offering tickets to flights that it had already decided to cancel, and not telling existing ticketholders promptly of the decision to cancel flights they had booked.  The ACCC and Qantas made joint submissions that the penalty was appropriate. Qantas also provided an undertaking to pay approximately $20 million to consumers, which was noted by the Court.  Qantas was also ordered to pay a contribution of $400,000 towards the ACCC’s costs of the proceeding. According to the ACCC, up to about 880,000 consumers were affected by Qantas’ conduct.

The ACCC media release can be viewed here.

The Federal Court has ordered online florist Meg’s Flowers Pty Ltd to pay $1 million in penalties for making misleading representations that it was a local florist located in each of the towns, suburbs or localities referred to in over 150 websites and over 7,000 Google advertisements.  Meg’s Flowers did not maintain any shopfronts, instead operating from 11 premises or, in some instances, through sub-contractors.

The Court also ordered that Meg’s Flowers establish a compliance program, publish a corrective notice and make a contribution to the ACCC’s costs.

The ACCC media release can be found here.

The ACCC has commenced proceedings in the Federal Court against online travel booking site Webjet Marketing Pty Ltd. The ACCC alleges Webjet breached the ACL when it made statements on its app, in marketing emails, on social media and on its website about the minimum price of airfares, which omitted compulsory fees charged by Webjet. Webjet is also alleged to have breached the ACL by displaying a confirmation page online and sending a confirmation email after taking payment for a completed flight booking when in fact it had not booked the flight with the airline. Webjet is alleged to have made these misleading representations in respect of 382 bookings over more than 5 years.

The ACCC media release can be viewed here.

The ACCC has commenced proceedings in the Federal Court alleging Optus engaged in unconscionable conduct in contravention of the ACL by selling unwanted, unneeded and/or unaffordable telecommunications goods and services to customers. In some cases, consumers were pursued for debts resulting from these sales. The ACCC alleges that many of the consumers pursued by Optus were experiencing vulnerability and/or disadvantage. The conduct is alleged to have occurred in relation to over 400 consumers, and included putting undue pressure on consumers to purchase a large number of products and failing to undertake coverage checks to inform the customer whether they would have Optus coverage where they lived.

The ACCC media release can be found here.

The ACCC media release can be found here.

The ACCC has instituted proceedings in the Federal Court alleging Magnamail made false or misleading statements in relation to “pre-draw” promotions in its mail order catalogues. The ACCC alleges that hundreds of thousands of consumers were sent attention-grabbing promotional materials (such as letters, envelopes, catalogues and scratch cards) which contained misleading statements that if consumers ordered products from Magnamail’s mail order catalogues, they had a right to claim, were eligible for, or had qualified for, a prize which could be valued up to $10,000, $20,000 or $25,000, or another major prize such as Apple iPads or jewellery. However, at the time those materials were sent, the prizes had already been drawn. Thus, only the small number of pre-drawn winners had a right to claim or were eligible for, a major prize. The ACCC has also alleged Magnamail’s parent company, Direct Group, was knowingly involved in the conduct.

The ACCC media release can be found here.

The ACCC has commenced civil cartel proceedings in the Federal Court against Spotless Facility Services Pty Ltd and Ventia Australia, as well as four senior executives, alleging the parties engaged in price fixing related to estate maintenance and operation services for the Department of Defence.  According to the ACCC, Spotless and/or Ventia made or attempted to make arrangements or understandings which had the purpose, effect or likely effect of fixing, controlling or maintaining the prices at which the services would be supplied to the Department of Defence under specific programs of works.  The ACCC alleges that this conduct breached the cartel provisions of the Competition and Consumer Act.

The ACCC media release can be found here.

The ACCC has commenced proceedings in the Federal Court against NDIS provider Ausnew Home Care Service Pty Ltd, alleging that it made false or misleading representations regarding the sale of aged care and disability products.

The ACCC alleges that Ausnew made false or misleading statements to consumers about the usual price of products (eg the “strikethrough” price and lower “sale” price), the time limited nature of sales and the savings that consumers could make when purchasing products through one of Ausnew’s frequent sales.  Ausnew also allegedly made representations that certain products were ”NDIS approved” and about consumers’ guarantee rights under the ACL, which were false or misleading.

The ACCC media release can be found here.

The ACCC has commenced proceedings against Mobil Oil Australia Pty Ltd in the Federal Court for allegedly making false or misleading statements about the fuel sold by Mobil at six petrol stations in Queensland.  The ACCC alleges that Mobil represented to consumers, through signage and posters, that the fuel was ‘Mobil Synergy’ fuel, which contained certain additives, when in fact Mobil did not supply that fuel to those sites and that the fuel sold at the sites was different to fuel sold at other non-Mobil retail sites as it contained additives which provided added benefits, which was not correct.

The ACCC media release can be found here.

The Treasury Laws Amendment (Mergers and Acquisitions Reform) Bill 2024 was passed by the Australian Parliament on 28 November 2024. The new merger regime will come into effect from 1 January 2026, but can be used on a voluntary basis from 1 July 2025.  The changes mean Australia’s merger review system will move from a voluntary and largely informal process, to a mandatory and suspensory merger control system.

The updated process requires all transactions above a prescribed threshold to be notified to the ACCC. If a party fails to notify the ACCC of a notifiable translation, the transaction will be rendered legally void and the parties may be subject to significant penalties.  The ACCC will also have the power to waive the obligation to notify it of an acquisition.  The bill also:

• provides the ACCC with the tools to better deal with ‘serial acquisitions’ (ie, to deal with situations where small acquisitions are made over time which ultimately end up causing serious harm to competition);
• requires the ACCC to publish reasons for all final merger decisions, which provides greater transparency for business and the broader community on all mergers considered by the ACCC;
• creates a more efficient process particularly for non-contentious mergers;
• allows the Treasurer to designate certain high-risk sectors and impose specific notification thresholds for those sectors;
• enables the ACCC to utilise enhanced economic data analysis in administrative decision making.

The ACCC will release draft process and analytical guidelines in Q1 2025 and publicly consult on the notification forms.

The ACCC media releases can be viewed here and here.

Furniture and homeware retailer Koala & Tree Pty Ltd, trading as Koala Living, has paid penalties of $56,430 for making false or misleading statements about consumers’ rights to remedies for faulty products. The ACCC had issued Koala Living with three infringement notices relating to false statements made about consumers rights to remedies for faulty products.  Koala Living had incorrectly stated that:

• consumer rights to remedies for faulty products were limited to a 72-hour period or the period of the manufacturer’s warranty;
• Koala Living could choose the type of remedy for minor and major faults; and
• delivery charges were not refundable.

In a court-enforceable undertaking given to the ACCC, Koala Living admitted that its conduct likely contravened the ACL.  It has also undertaken to provide compensation to consumers affected by the conduct who have not yet received a full refund, repair or replacement from the company.

The ACCC media release can be viewed here.

Online stock photography company Getty Images has agreed to refund around $78,000 to customers, after imposing charges for cancellation of iStock subscriptions which were alleged to be greater than those set out in its terms and conditions. The ACCC alleged that Getty Images misled customers by stating in its online iStock terms and conditions that cancelling a subscription after a one-month free trial period would only incur an “administrative charge”. However, the charge amounted to 50% of the remaining cost of the customer’s annual subscription which the ACCC said could not be fully explained by the administrative costs of processing the cancellation.

The ACCC media release can be viewed here.

The Treasurer announced in October that the ACCC would receive $30 million over 3.5 years in additional funding to carry out investigations and undertake enforcement work in relation to the supermarket and retail sector. The ACCC intends to use the funding to escalate a range of investigations in the sector, including in relation to potential misleading pricing claims and claims regarding delivery timeframes, as well as misrepresentation of consumers’ rights under the ACL.

The ACCC media release can be viewed here.

The ACCC has granted interim authorisation, with conditions, to the ABA to continue arrangements regarding its Banking Code of Practice. The conditions allow ABA member banks to, amongst others, continue to set minimum criteria for eligibility, mandate minimum features for basic accounts and stipulate special features for certain accounts.

Interim authorisation enables the ACCC to continue its assessment of the issues raised in the substantive application for revocation and substitution of a revised Banking Code of Practice.

The ACCC media release can be found here.

The ACCC has begun consultation with the Government regarding the implementation of a new digital competition regime in Australia, following the Government’s in principle agreement to competition reforms addressing harms caused by digital products, recommended by the ACCC.

If introduced, the proposed framework would complement existing competition law and incorporate new, upfront service-specific obligations on certain ‘designated’ digital platforms that provide specific services. For example, under the new obligations proposed under the framework, app marketplaces may be prevented from requiring developers to use their proprietary in-app payment systems, which often include commission fees of up to 30% of every in-app digital transaction.

The ACCC media release can be viewed here.

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The ACCC has preliminary competition concerns with Cleanaway Waste Management Limited’s proposed acquisition of the waste and recycling business of Citywide Service Solutions Pty Ltd. Cleanaway is one of the largest waste management companies in Australia. The ACCC’s Statement of Issues outlines its concern that the acquisition will extend Cleanaway’s already strong position in Melbourne and remove the close competitive tension between Cleanaway’s and Citywide Waste’s disposal facilities, which may facilitate Cleanaway to charge higher prices to downstream collection providers and reduce service quality.

The ACCC invited submissions in response to the Statement of Issues. The ACCC media release can be viewed here.

The ACCC is focusing on problematic advertising practices which target participants in the National Disability Insurance Scheme (NDIS) and include making false representations about access to the NDIS and advertisements that suggest funding can be used to purchase supports which are ineligible for NDIS funding.

Changes to the NDIS clarifying the supports that NDIS participants can and cannot spend their NDIS funding on, came into effect on 3 October 2024. The goods and services that can and cannot be claimed can be found at the NDIS website.

The ACCC media release can be viewed here

The ACCC has expressed concern with “sales” advertising after conducting a sweep of Australian businesses online and in store during the Black Friday sales event.  The ACCC found that a number of claims about the size and scope of discounts may have been misleading, including “sidewide” discounts that were not in fact sitewide, misleading “was/now” pricing and dubious claims about the value of discounts on offer. The ACCC is further considering some of the examples it found for investigation and action.

The ACCC media release can be found here.