Competition and Consumer Amendment (Fair Go for Consumers and Small Business) Act 2024

The Competition and Consumer Amendment (Fair Go for Consumers and Small Business) Act 2024 amends the Competition and Consumer Act 2010 by inserting a new Part XIE called Designated complaints. Part XIE sets up a formal process under which designated complainants may make designated complaints to the ACCC about significant or systemic market issues affecting consumers or small businesses in Australia.

The Act's simplified outline says the ACCC must respond to a designated complaint within 90 days. If the complaint meets the required criteria, the ACCC may give a notice setting out the actions it proposes to take in response. If it does that, the ACCC must generally use its best endeavours to commence those actions as soon as practicable and, in any case, within 6 months, unless prescribed circumstances apply.

This is not a general right for every business or consumer to require an ACCC investigation. The scheme is narrower and more structured than that. It is designed for approved representative entities, and it operates alongside detailed rules about approval, complaint form and content, publication, withdrawal, replacement notices and the Minister's power to make a designated complaints determination by legislative instrument.

An entity may apply to the Minister for approval as a designated complainant. The Act defines entity broadly. It includes a corporation, an individual, a body corporate, a corporation sole, a body politic, a partnership, any other unincorporated association or body of entities, and a trust. However, a State or Territory may not apply.

Approval is not automatic. The Minister may grant approval in writing if satisfied that it is appropriate to do so. In deciding that, the Minister must have regard to the applicant's experience and ability in representing the interests of consumers or small businesses in Australia in relation to a range of market issues that affect them, the extent to which the Minister is satisfied the applicant will act with integrity in connection with being a designated complainant, and any other matters prescribed as mandatory considerations in the designated complaints determination.

The Minister may also have regard to any optional matters prescribed in the designated complaints determination and any other matter the Minister considers relevant. The Act also says the Minister must not grant approval if doing so would result in the number of designated complainants being above the limit prescribed in the designated complaints determination. So the legislative instrument may materially affect who can participate and how many approved complainants there can be at any one time.

For most businesses, the practical point is simple. Do not assume your industry body, advocacy group or professional association can already use this process. Check whether it has actually been approved, whether its approval is still in force, whether there is an end date, and whether any conditions have been published.

A designated complaint can only be made by a designated complainant. The complaint must be in writing. If the ACCC has approved a manner for making the complaint, it must be made in that manner. If the ACCC has approved a form, the complaint must be made in that form, include the information required by the form, and be accompanied by any documents required by the form.

The complaint must also meet any requirements prescribed in the designated complaints determination relating to the number and types of designated complaints that a designated complainant may make during a specified period. This is an important practical limit. The Act creates the framework, but the legislative instrument may set additional limits or requirements that affect whether a complaint qualifies as a designated complaint at all.

A complaint becomes a designated complaint from the day it meets those statutory requirements. The ACCC's mandatory 90 day response obligation is tied to receiving a designated complaint, not just any letter, submission or allegation sent to the regulator.

On subject matter, the ACCC must be satisfied that the complaint relates to a significant or systemic market issue affecting consumers or small businesses in Australia, or both. It must also relate either to a potential breach of the Competition and Consumer Act 2010 or to one or more of the ACCC's powers or functions under that Act. The scheme is therefore aimed at broader market issues, not ordinary one-off disputes or isolated complaints.

If the ACCC receives a designated complaint from a designated complainant, it must assess the complaint and, within 90 days, give the complainant one of two notices. The first is a no further action notice. The second is a further action notice setting out the actions the ACCC proposes to take in response to the complaint.

If the ACCC gives a no further action notice, the notice must include a summary of the complaint, identify which of the statutory no-action pathways apply, and give reasons for the decision. If the ACCC gives a further action notice, the notice must include a summary of the complaint and the actions the ACCC proposes to take in response.

Where the ACCC gives a further action notice, it must use its best endeavours to commence the stated actions as soon as practicable after giving the notice and, in any case, within 6 months. When those actions have been completed, the ACCC must use its best endeavours to notify the entity that made the complaint, even if that entity has ceased to be a designated complainant.

There is an important qualification. The 6 month commencement obligation does not apply if the ACCC is satisfied that circumstances prescribed in the designated complaints determination apply. If that happens, the ACCC must use its best endeavours to notify the entity that made the complaint. Businesses should therefore not read the Act as an absolute guarantee that every proposed action will always start within 6 months regardless of later developments or prescribed exceptions.

The Act also allows the ACCC to replace an earlier further action notice. It may replace it with another further action notice if it considers that appropriate, or with a no further action notice if the statutory grounds about other inquiry or action, or appropriateness of taking no further action, apply. This means the ACCC's position can change after the initial response.

The Act sets out several pathways for a no further action notice. Some are mandatory and some are discretionary.

The ACCC must give a no further action notice if it is not satisfied that the complaint relates to a significant or systemic market issue affecting consumers or small businesses in Australia, or that it relates to a potential breach of the Act or to one or more of the ACCC's powers or functions under the Act.

The ACCC may also give a no further action notice if it is not satisfied that the complaint meets any requirements prescribed in the designated complaints determination. Again, this shows why the legislative instrument matters in practice. A complaint may fail not only because of the core statutory criteria, but also because it does not satisfy additional prescribed requirements.

The ACCC may also decline to proceed if the subject matter is, or is part of, a matter that is being examined elsewhere or has recently been examined in one of the ways listed in the Act. The Act specifically refers to inquiries by parliamentary committees, Royal Commissions and coronial processes, and also to legal proceedings or prescribed inquiries, investigations or reviews conducted by the Commonwealth, a State or Territory, an industry organisation, a consumer organisation or another person.

Finally, after assessing the complaint, the ACCC may decide it is appropriate to take no further action. In deciding that, it must have regard to any matters prescribed for that purpose in the designated complaints determination and may have regard to any other prescribed matters. The Act therefore leaves room for further detail to be set by legislative instrument.

The ACCC must, as soon as practicable, publish on its website a range of notices and notifications connected with designated complaints. These include no further action notices, further action notices, notifications that actions have been completed, notifications that the ACCC is not required to take further action because prescribed circumstances apply, replacement notices, and certain withdrawal notifications.

That publication duty is not absolute. The ACCC does not have to publish information if it is satisfied that it is appropriate not to publish the information because of its confidential nature. It also does not have to publish information if a circumstance prescribed in the designated complaints determination applies to publication of the information. So while the scheme is designed to increase transparency, the Act itself recognises that some information may need to be withheld.

For businesses, this means a designated complaint can create public visibility around a market issue and the ACCC's response, even if not every detail is published. If your sector is affected by a designated complaint, you may see public notices that signal regulatory attention, possible follow-up action, or a decision not to proceed. Those notices may still be important for risk management even where some underlying information is not disclosed.

An entity seeking approval must apply to the Minister in writing. If the Minister has approved a manner for making the application, the application must be made in that manner. It must also be made during a period prescribed under the designated complaints determination. The Act allows that determination to prescribe a single application period or recurring periods, and to provide for the start or end date of a period to be as set out on the Department's website.

If the Minister has approved a form, the application must be made in that form, include the information required by the form, and be accompanied by any documents required by the form. An applicant may withdraw the application in writing before the Minister makes a decision, and if it is withdrawn it is taken never to have been made.

The Minister may grant approval in writing if satisfied that it is appropriate. The approval may be subject to conditions if the Minister is satisfied those conditions are appropriate. If the Minister is considering granting approval subject to conditions, the Minister may give the applicant written notice setting out those conditions, and 14 business days must pass before the approval can be granted on that basis.

The approval must state the name of the designated complainant, any date on which the approval ceases to be in force, and any conditions. If approval is granted, the Minister must publish the entity's name on the Department's website and may publish all or part of the conditions.

The Act also allows variation or revocation of approval. A designated complainant can apply for variation or revocation. The Minister may also vary or revoke an approval, including after giving notice and allowing at least 14 business days, unless an exception applies such as a variation in accordance with the complainant's own application or a minor or technical variation. In deciding whether variation or revocation is appropriate, the Minister may consider matters including whether the designated complainant has contravened a condition of approval.

This matters because a complaint only attracts the scheme while the complainant remains a designated complainant. If an entity ceases to be a designated complainant before the ACCC gives its 90 day response notice, the complaint is taken never to have been made for that purpose.

A designated complaint can be withdrawn in writing by the entity that made it, provided the ACCC has not yet given either a no further action notice or a notification that the further actions have been completed. The ACCC must notify the entity in writing that the complaint has been withdrawn. Depending on the stage reached, withdrawal can end the ACCC's response obligations or its obligation to continue with previously stated actions. Even so, the withdrawn complaint continues to be a designated complaint for certain purposes under the Act.

The amendments also change the ACCC's annual reporting requirements. The ACCC's annual report must now include the number of designated complaints received and the number of designated complaints in respect of which the ACCC did not comply with the 90 day response requirement or the 6 month commencement requirement. This adds another layer of accountability to the scheme.

Before relying on this framework, businesses should check the current position on several fronts. First, confirm whether the relevant representative body is actually approved as a designated complainant. Second, check whether that approval is still in force and whether any conditions or an end date apply. Third, check the current designated complaints determination because it may prescribe extra requirements, complaint limits, application periods, publication exceptions and circumstances affecting ACCC follow-up. Fourth, check whether the ACCC has approved a manner or form for making complaints under the scheme. The Act is the framework, but these additional settings can materially affect how the scheme works in practice.

The Act received Royal Assent on 8 April 2024. Under the commencement table, the whole Act commenced on the later of 1 May 2024 and the day after Royal Assent. The commencement date recorded in the Act is 1 May 2024.

The Act also requires an independent review of the operation of the amendments made by Schedule 1. That review must commence as soon as practicable after the end of 24 months after commencement. The persons undertaking the review must give the Minister a written report within 6 months of the commencement of the review, and the Minister must table the report in each House of Parliament within 15 sitting days after receiving it.

Because the scheme relies in part on a designated complaints determination made by legislative instrument, businesses should treat the Act as the core framework and then confirm the current subordinate settings before acting on it.

Businesses often ask whether this scheme creates a new direct complaint right. It does not. The formal process is limited to approved designated complainants. Businesses also ask whether the ACCC must investigate every designated complaint. The answer is no. The ACCC must respond within 90 days, but it can still issue a no further action notice on the grounds set out in the Act.

Another common question is whether everything becomes public. The ACCC must publish specified notices and notifications as soon as practicable, but publication is subject to confidentiality and any prescribed circumstances in the designated complaints determination. Businesses should also remember that the Minister's approval process and the designated complaints determination may set further eligibility requirements, limits or practical conditions that affect who can use the scheme and how it operates.