Chapter 1Introduction
Referral of the inquiry
1.1On 15 February 2024, the Competition and Consumer Amendment (Fair Go for Consumers and Small Business) Bill 2024 (the Fair Go bill) was introduced and read for a first time in the House of Representatives.
1.2On 29 February 2024, the Fair Go bill was introduced and read for a first time in the Senate. The provisions of the Fair Go bill were referred to the Senate Economics Legislation Committee (the committee) for inquiry and report by 15 March 2024.
Purpose of the Fair Go bill
1.3The Fair Go bill would amend the Competition and Consumer Act 2010 to establish a ‘super complaints’ function, using the terminology of ‘designated complaints’. These would be complaints about significant or systematic market issues made to the Australian Competition and Consumer Commission (ACCC). Entities would be required to apply to the Minister in order to be approved as a designated complainant.
1.4The Fair Go bill draws on the United Kingdom’s ‘super complaints’ framework, which allows certain organisations to make complaints to government bodies and requires those bodies to consider and respond to those complaints within specified timeframes.
1.5The ACCC would be required to assess designated complaints, which would be complaints that meet the relevant requirements in the Fair Go bill and any relevant determinations. The ACCC would be required to notify the designated complainant who made the designated complaint of what action, if any, the ACCC intends to take in response to the designated complaint. The ACCC would be required to undertake this assessment and notification within 90 days of receiving the complaint. The bill would not provide additional powers to the ACCC, and any responses to designated complaints would be based on the existing powers and functions of the ACCC.
Provisions of the Fair Go bill
1.6The Fair Go bill contains one schedule. This schedule proposes to amend the Competition and Consumer Act 2010 by introducing a new Part XIE to the Act. Part XIE would introduce a system for approving, and varying or revoking the approval of, designated complainants. It also would introduce requirements relating to designated complaints, and provisions related to transparency and delegation.
Approval of designated complainants
1.7A range of entities may apply for approval as a designated complainant. The Fair Go bill is intended to allow entities representing the interests of consumers to become designated complainants, regardless of whether the entities are corporations, individuals, and unincorporated associations.
1.8States and territories cannot apply to be designated complainants under the Fair Go bill, because other pathways already exist for these entities to raise systemic or significant market issues.
1.9Entities who apply for approval as a designated complainant would be required to:
make their application in writing;
be made in the approved form or manner, if the Minister has approved such a form or manner;
include any information or documents required to be provided, if any;
be made in the appropriate time period, if prescribed by the Minister in a designated complaints determination.
1.10The Minister would be required to approve an entity as a designated complainant where the Minister is satisfied that it is appropriate to grant the approval. The appropriateness of granting the approval is subject to several compulsory criteria, which the Minister must consider, and may be subject to discretionary approval criteria, which the Minister may consider.
1.11The compulsory approval criteria are:
the experience and ability of the applicant in representing consumers and/or small business regarding a range of relevant market issues;
the likely integrity of the applicant as a designated complainant if approved, and;
any other matter specified in a designated complaints determination.
1.12The Fair Go bill’s explanatory memorandum provides guidance on what may be considered when the Minister is considering the compulsory approval criteria. In considering an entity’s experience and ability representing the interests of consumers or small businesses, the Minister may consider whether the entity:
has ongoing connection with consumers or small businesses, including regular contact or communications with representees of the entity;
advocates on behalf of consumers or small businesses, particular where the entity has ongoing experience advocating on behalf of that group;
has access to or an ability to obtain timely, quality, relevant data about the interests of Australian consumers or small businesses from representees;
is able to research, prepare and submit complains about market issues based on good quality intelligence conveying the interests of consumers and small businesses in Australia.
1.13In considering an entity’s likely integrity in the role, the Minister may consider the entity’s independence from other interests which may negatively impact the entity’s ability to genuinely represent the interests of consumers or small businesses, and the presence of any governance and accountability arrangements that could ensure the entity can be relied upon to act independently and with integrity.
1.14The discretionary approval criteria, if any, would be those that the Minister considers relevant and those that are prescribed in a designated complaints determination.
Designated complaints determinations
1.15A designated complaints determination would be a disallowable legislative instrument prescribing matters as required or permitted by Part XIE of the Competition and Consumer Act 2010.
1.16The Minister would have the power to determine criteria through designated complaints determinations because such criteria may need to change quickly to ensure the continued integrity of the designated complaints function and to maintain high standards are maintained for designated complainants.
1.17The Minister may prescribe a maximum number of designated complainants to be approved in a designated complaints determination. The Minister may not approve an otherwise meritorious entity as a designated complainant if to do so would result in the number of designated complainants over the prescribed limit. This is to ensure there are appropriate resources for the ACCC to respond to designated complaints.
1.18Designated complaints determinations may also prescribe requirements relating to the number and types of designated complaints that may be made within a certain time period. This is to ensure there are appropriate resources for the ACCC to respond to designated complaints.
1.19Designated complaints determinations may also prescribe matters that the ACCC may or must consider when assessing designated complaints.
Conditions on approval
1.20The Minister may grant conditional approvals for entities to be designated complainants in order to mitigate any potential or actual risk associated with approval of an applicant as a designated complainant. Conditions may relate to ensuring a designated complainant meets certain standards or limiting the kind of complaints a complainant may make.
1.21Conditional approval may only be granted where the Minister has given notice to the entity setting out the proposed conditions and 14 business days have passed since that notice was given. The Minister would also be required to give a copy of the approval to the ACCC and publish the name of the designated complainant on the Department’s website as soon as practicable after the approval. The Minister may publish all or parts of any conditions to which approval is subject.
Variation and revocation of approval
1.22The Minister would be able to vary or revoke approval of a designated complainant either on application from that designated complainant or on the Minister’s initiative.
1.23A designated complainant who has made an application for variation or revocation can withdraw that application any time before the Minister has made a decision. If the application is withdrawn, it would be treated as though it was never made.
1.24However, minor and technical variations to approval do not require notice or a period of 14 business days before the variation would take effect.
Notice regarding approval
1.25After an entity applies to become a designated complainant, the Minister must provide that entity with notice of the outcome of the application. Approvals must include the name of the designated complainant, the date (if any) that approval will cease, and any conditions to which approval may be subject.
1.26If the Minister varies or revokes an approval, regardless of whether the variation or revocation was initiated by the Minister or on application from the relevant designated complainant, the Minister must give the complainant notice of the decision and a copy of the variation or revocation. The variation or revocation must specify:
the day on which the decision was made;
the day on which the decision will take effect;
any date on which approval would cease which is changed; and
any conditions of approval which are changed or removed.
1.27The Minister must also provide notice of a decision not to vary or revoke approval in response to an application to vary or revoke approval from a designated complainant.
1.28Where the Minister initiates variation or revocation of their own initiative, the Minister must give the designated complainant notice of the proposed variation or revocation, and 14 business days must pass between the notice being given and the variation or revocation taking effect. As well as providing notice of the proposed variation or revocation, the notice must set out the reasons for the variation or revocation and the day on which it would be effective.
Designated complaints
1.29In order for the ACCC to consider a designated complaint, the designated complaint must:
be in writing;
be made in any manner or form as approved by the ACCC; and
meet the relevant requirements, if any, prescribed by the designated complaints determination, relating to the number and types of designated complaints that a designated complainant may make.
Consideration and notice regarding designated complaints
1.30The ACCC would be required to assess all designated complaints. The ACCC would be required to provide notice of the assessment outcome to the designated complainant that submitted the designated complaint, within 90 days of the ACCC receiving the designated complaint.
1.31The ACCC would be able to provide notice either that no further action will be taken to deal with the designated complaint (a no further action notice), or that they will take further action to deal with the complaint (a further action notice). The notice must be published on the ACCC website to ensure public transparency regarding the designated complaints function.
1.32If a designated complainant ceases to be a designated complainant after making a designated complaint but before the ACCC has provided this notice of assessment outcome, the complaint is taken never to have been made and the ACCC will not be required to provide notice.
1.33The ACCC would be required to consider designated complaints in relation to the mandatory content requirements in the Fair Go bill. For the ACCC to take further action on a designated complaint, the designated complaint must relate to:
either a significant market issue, or a systemic market issue; and
either a breach of the Competition and Consumer Act 2010, or one or more of the ACCC’s powers under the Competition and Consumer Act 2010.
1.34The ACCC would be required to provide a no further action notice to any designated complainant in relation to a designated complaint where the ACCC is not satisfied that the designated complaint meets the mandatory content requirements.
1.35The ACCC also has discretion to provide a no further action notice to a designated complainant in three circumstances:
Where the ACCC is not satisfied that a designated complaint meets additional content requirements prescribed by a designated complaints determination.
Where the ACCC has assessed the designated complaint, has considered matters, if any, which are prescribed for consideration by a designated complaints determination, and is satisfied that it is appropriate to take no further action in relation to the complaint.
Where the ACCC is satisfied that part or all of the complaint’s subject matter is also the subject of either a Parliamentary inquiry, a Parliamentary committee inquiry, a Royal Commission, legal proceedings, or an inquiry, investigation or review conducted by the Commonwealth, a State or Territory, an industry or consumer organisation, or other person prescribed in a designated complaints determination. This includes where such a proceeding, inquiry, investigation or review took place within a specified time period prior to the designated complaint being made.
1.36This discretion is intended to ensure the ACCC may take no action if the subject matter of the designated complaint has been, or is being, formally considered.
1.37Independent merits review would not be available in respect of a decision by the ACCC regarding whether to issue a no further action notice, on the basis that such a decision would be preliminary or procedural in nature and would be part of a required administrative assessment.
1.38Where the ACCC issues a no further action notice to a designated complainant, the notice must contain a summary of the complaint, the grounds on which the ACCC is taking no further notice, and the reasons for the ACCC’s decision. Such a notice would be required to be published on the ACCC’s website.
1.39Where the ACCC issues a further action notice to a designated complainant, the notice must contain a summary of the complaint and the actions the ACCC proposes to take in response to the complaint. Such a notice would be required to be published on the ACCC’s website.
Timeframes for action
1.40Where a further action notice is issued, the ACCC would be required to use its best endeavours to commence those actions as soon as practicable after giving the notice, within a maximum of six months after giving the notice.
1.41Once the ACCC has completed the actions stated in a further action notice, the ACCC would be required to use its best endeavours to notify the entity that submitted the designated complaint, even if the entity is no longer a designated complainant. Such notice must be published on the ACCC website to promote transparency and accountability.
1.42However, a designated complaints determination may prescribe circumstances relating to the nature or scope of a designated complaint or prescribe administrative circumstances affecting the capability or resourcing of the ACCC. In such a case, the ACCC would not be required neither to commence actions as soon as possible, nor start the actions within six months of giving notice to the complainant, nor inform the complainant that the actions have been completed.
Replacement notices
1.43Where material changes in circumstances mean that originally proposed actions set out in a further action notice are no longer appropriate, the ACCC may issue a replacement notice which stands in the place of the earlier further action notice. The replacement notice must set out a summary of the complaint and the actions the ACCC proposes to take in response to the complaint.
1.44A replacement notice may effectively be a no further action notice, if appropriate. Such a replacement notice would be required to also set out a summary of the complaint, the ground for issuing the replacement notice, and the reasons for the ACCC’s decision.
1.45Replacement notices would be required to be published on the ACCC website.
Withdrawal of complaint
1.46An entity, whether or not it is still a designated complainant, may withdraw a designated complaint that it has made prior to the ACCC issuing a no further action notice or prior to the ACCC issuing notice that a proposed action is complete.
1.47Following the receipt of a such a withdrawal from an entity, the ACCC must notify the entity that the complaint has been withdrawn in writing, and the withdrawal must be published on the ACCC website. The ACCC would not be required to take further action regarding a withdrawn complaint, but such a withdrawn complaint would continue to be a designated complaint for the purposes of any limit on the number of complaints that may be made during a time period, and for the purposes of annual reporting requirements.
1.48The ACCC would not be required to take further action on a withdrawn designated complaint but would still be permitted to investigate the complaint.
Publication
1.49The ACCC would be required to publish certain information on their website. This includes no further action notices, further action notices, notifications that actions are complete, notifications that the ACCC is not taking actions within the relevant timeframes, replacement notices, and notifications that complaints have been withdrawn after an initial further action notice is issued.
1.50However, the ACCC would not be required to publish this information where the ACCC is satisfied that it is not appropriate to publish the information because it is confidential in nature, or where circumstances exist as prescribed by the Minister in a designated complaints determination.
Annual reporting
1.51Section 171 of the Competition and Consumer Act 2010 requires certain information to be included in the ACCC annual report.
1.52The Fair Go bill would amend these requirements so that the ACCC annual report would be required to include the number of designated complaints received by the ACCC, and the number of designated complaints regarding which the ACCC did not comply with timeframe requirements for issuing notice or commencing action.
1.53The existing requirement to report on complaints would not include reporting on designated complaints.
1.54The existing requirement to provide a general summary of the kinds of complaints received by the ACCC and how it dealt with them would include designated complaints.
Delegation
1.55The Minister would be able to delegate any powers under the new Part XIE to the Secretary or an SES employee in the Department, except for the power to make a designated complaint determination. When exercising this delegated power, a delegate must comply with any of the Minister’s written directions.
Consultation
1.56The Treasury undertook consultation on an exposure draft of the bill from 7 December 2023 to 3 January 2024. At the time of writing, no submissions have been published for this consultation.
Commencement
1.57The Fair Go bill would commence on the later of 1 May 2024 and the day after it receives Royal Assent.
Financial impact
1.58The Fair Go bill is estimated to have nil or minimal financial impact.
Legislative scrutiny
1.59The Senate Scrutiny of Bills Committee (Scrutiny committee) has sought advice from the Minister on why elements of the scheme will be provided for in delegated legislation, and a justification for the exclusion under the Fair Go bill of specific decisions from merits review.
1.60At the time of writing, advice from the Minister has not been published by the Scrutiny committee.
Conduct of the inquiry
1.61The committee advertised the inquiry on its webpage and wrote to relevant stakeholders inviting them to make written submissions by Thursday 7 March 2024.
1.62The committee received 11 submissions, which are listed in Appendix 1.
1.63The committee did not hold a public hearing for this inquiry.
Acknowledgements
1.64The committee thanks all individuals and organisations who assisted with the inquiry, especially those who made submissions to the inquiry.
Structure of Report
1.65Chapter 1 provides an overview of the Fair Go bill and the conduct of the inquiry.
1.66Chapter 2 provides views on the Fair Go bill provided by stakeholders through submissions, as well as providing the committee’s view on the evidence and recommendation to pass the Fair Go bill.