The Treasury Laws Amendment (More Competition, Better Prices) Act 2022 received royal assent on 9 November and is now in force. Maximum penalties for contraventions of the CCA and ACL have significantly increased, effective immediately, exposing business to very substantial risk. The need for robust policies, systems and training to ensure compliance with the legislation has never been more important.
Directors of Australian companies face significant personal monetary – and potential criminal and adverse professional – consequences if they allow the company to trade whilst insolvent.
Australian insolvent trading laws are harsher, and more frequently utilized to prosecute directors personally, than in many other jurisdictions including in the US and the UK.
Regulators and courts in common law jurisdictions around the world are being given significant and increasing powers to impose financial penalties without traditional criminal law safeguards. Competition law has been particularly susceptible to arguments that traditional safeguards should be discarded to aid regulators in securing convictions. In the first competition case to go to trial in Hong Kong, the Competition Tribunal held in 2019 that in competition proceedings seeking financial penalties, the authority had the burden to prove its case beyond reasonable doubt. This article considers the approach taken in other common law jurisdictions and scope to argue for increased safeguards and human rights protections for clients facing financial penalties.
On 28 September 2022, the Government introduced the Treasury Laws Amendment (More Competition, Better Prices) Bill 2022. If passed, the Bill will: introduce a civil penalty regime prohibiting the use of and reliance on unfair contract terms in standard form contracts; increase the maximum penalties that may be awarded for breaches of the civil penalty provisions in Parts IV, IVBA, X and XICA of the Competition and Consumer Act 2010 (and under the Australian Consumer Law to the greater of AUD 50 million, if the court can determine the value of the benefit obtained — three times the value of that benefit, if the court cannot determine the value of the benefit obtained — 30% of the body corporate’s adjusted turnover during the breach turnover period for the offence, act or omission, and increase the maximum civil penalty for breaches by telecommunications providers of the Competition Rule, to up to AUD 71 million plus AUD 3 million for every day that a contravention continues in the most serious cases.
The ACCC has announced two internet sweeps to identify misleading environmental and sustainability marketing claims and fake or misleading online business reviews and a separate sweep to target fake or misleading online reviews and testimonials. The sweeps are being conducted as part of the ACCC’s compliance and enforcement priorities for 2022-23 announced earlier this year, with the broad aim of identifying deceptive advertising and marketing practices related to the environment and sustainability.
The Minister for Education announced on 21 September 2022 that the government has directed the ACCC to commence an inquiry into the costs of childcare, and in particular why childcare costs have increased significantly in recent years (the announcement states the increase has been 41% in the past eight years). The announcement follows the government’s stated commitment to a comprehensive plan for cheaper childcare and addressing rising costs of living as announced during the Federal Election.
Substantiating green claims, statements regarding price increases and minority interests in competing companies In brief The new ACCC Chair recently spoke at two competition law conferences, and described some of the key priorities for the ACCC for the year ahead. Key priorities include: issuing more substantiation notices (requiring a company to give…
On 30 August 2022, the Indonesian House of Representatives agreed to pass a law ratifying the Regional Comprehensive Economic Partnership, the largest regional free trade agreement outside the World Trade Organization — involving 10 ASEAN countries and five non-ASEAN countries, i.e., China, New Zealand, Australia, Japan and South Korea. With the passing of this law, which still requires promulgation by the President, RCEP is set to come into force for Indonesia, possibly before the end of the year.
On 18 August 2022, the Federal Government released for consultation the Treasury Laws Amendment (Competition and Consumer Reforms No. 1) Bill 2022: More competition, better prices. The exposure draft legislation seeks to significantly increase the maximum penalty per contravention to AUD 50+ million for corporations engaging in anti-competitive conduct (including, for example, cartel offences, misuse of market power, and exclusive dealing) under Part IV of the Competition and Consumer Act 2010 as well as for contraventions of the Australian Consumer Law. Penalties for breach of competition and consumer laws in Australia have increased rapidly in recent years, particularly in the context of consumer law contraventions, which will have seen an almost 50 times increase in the maximum penalty per contravention over a five year period (if the draft legislation is passed).
The Australian Securities and Investments Commission has, again, extended the transitional relief period for Foreign Financial Services Providers for a further 12 months to 31 March 2024, through the introduction of the ASIC Corporations (Amendment) Instrument 2022/623 on 28 July 2022. ASIC has stated the Amendment Instrument was introduced to provide certainty for the industry given the lapsing of the Treasury Laws Amendment (Streamlining and Improving Economic Outcomes for Australians) Bill 2022.