News

28 February 2024 

I rise to speak on the Competition and Consumer Amendment (Fair Go for Consumers and Small Business) Bill 2024. Consumer choice is incredibly important—essential, I would say. Markets work best when there is competition and choice. Markets also work best when everyone plays by the same rules. This is especially true for small businesses.

Small businesses make up 97.5 percent of businesses in Australia. They are facing, at the moment, a perfect storm of ongoing high interest rates, high energy prices, staff shortages and a downturn in consumer confidence due to successive Reserve Bank interest rate rises. I know, from talking to many small businesses in Warringah, that, right now, many business owners wonder what the government is actually doing for them. The government needs to proactively support small businesses in adapting, innovating and maintaining productivity to survive these ongoing pressures and headwinds. The government needs to support small businesses as they do large businesses and multinationals.

The figures are stark. Only 43 percent of small businesses are breaking even. On this front, the government has been slow to give small businesses as much support as they could, given the current economic headwinds. For example, the instant asset write-off and decarbonisation grants legislation for small businesses was first debated in this place in October last year, but is yet to pass the other pace and so has not become law. Yet the provisions in that legislation end in this current financial year. I have moved amendments and sought for the government to extend it, because that is the stupidity of the situation. I urge the government, again, to consider extending those provisions. We only have three months to go in the current financial year.

So again, I call on the government to think about its approach to small business. The policy process has been all over the place and, really, a bit piecemeal. The industrial relations reforms have just added more uncertainty and complexity for business owners, and this includes amendments put in the legislation, such as the right to disconnect. I repeat that this is not how we want to make good, sober public policy.

The problem before the government is this: there are currently extensive delays in considering and resolving complaints made by consumers to the ACCC. The ACCC's latest annual report notes that it's not hitting its own targets for initial competition investigations to be completed within three months, nor in-depth competition investigations to be completed within 12 months. It's failing on its own metrics, which begs the question: why is the government not looking at the issue of providing greater resources to the ACCC or auditing to ensure efficiencies as to why we are not meeting those metrics for investigating and resolving complaints. To me, ensuring there are sufficient resources to the ACCC—if that is where the problem is, in relation to dealing with the caseload—that would be logical. But, instead, the government is choosing a fairly different path to improving the complaints resolution process, essentially creating a priority triage process for complaints.

What this bill before us does is set out a complaints framework that allows designated entities and consumer and small business advocates to bring evidence of significant or systemic market issues to the Australian Competition and Consumer Commission for consideration. Then, the ACCC, in accordance with its own rules, must respond within a certain time frame to these designated entities. The bill establishes a designated complaints function, and the designated complainants will be organisations approved by the minister. The minister may limit the number of designated complainants in a time period, and, in turn, the ACCC must reply to the designated complainant's complaint within 90 days, with notice of the action, if any, they intend to take.

If we really part through the detail, we're getting a minister with a high level of discretion to designate who these designated complainants will be. Whilst the ACCC must reply within 90 days, they don't have to investigate; they just have to reply. So it still isn't really progressing the problem of complaints actually getting resolved and investigated automatically. Of course anyone, any other consumer or entity, can still make general complaints to the ACCC.

Really, if we can boil this down to simple language, the government is proposing a triage and prioritisation process, open to some in a designated complaint organisation. The ACCC may assess general complaints and decide whether to publish details of any actions it has taken in response to those. My concern is this is not automatically going to address the backlog or case load concerns from consumers and their complaints and how that is processed. I think what we will see is an allocation of resources internally to these designated complainants.

The designated complainant can be a corporation, a person holding a particular position, such as a statutory officer, or an unincorporated association. My understanding is that small business and consumer advocacy organisations are what the minister really has in mind and is looking at as being potential designated complainants. Whilst in principle that may well work—I think of organisations like Choice or COSBOA, which represents a number of small businesses—I am concerned about the criteria for those designated complainants and how that then sidesteps the idea that all complaints and all small businesses and customers have that opportunity for an equal process and equal avenue to the ACCC.

The bill details approval criteria to ensure designated complainants genuinely represent the interests of consumers and small businesses. That will be a little subjective, I think. I am concerned that where organisations are fee-for-membership organisations, you are essentially providing an added reason for joining an organisation, because consumers and small businesses may well feel they then have access to a higher likelihood of a complaint being considered by the ACCC and being resolved. So there's a little bit of a picking of favourites in this triage and prioritisation process. I have raised with the minister my concerns about how this is shifting the opportunity to have complaints considered by the ACCC.

We don't want to supersede the ACCC's central role, which is responding to complaints by consumers. I accept that often consumer complaints will come in bulk, if there are repeated behaviours that are coming to light, and organisations like Choice may well be the right body to bring forward that bulk of complaints by consumers. But that's not always the case, and the question of threshold and willingness to address certain consumer complaints is I think one of the challenges for the ACCC.

I am prepared to give the government the benefit of the doubt on this bill, in the hope that this will provide a better pathway to resolution of consumer complaints, but I will be moving an amendment to ensure we have a review clause in the legislation to ensure that it is working properly. We don't want a situation with the result that in a couple of years time we have essentially the ACCC triage and prioritisation process where they are favouring the complaint process through these designated complainants but ignoring complaints from consumers and customers. I think it's important that we keep an eye on that, and this place is where we need to be able to do that process of review, because we are ultimately talking about a handful of empowered organisations to whom this legislation will clearly be giving an advantage.

I acknowledge that the UK has a similar complaints framework known as a super-complaints process. It was first established in 2003, expanding into other areas such as the financial market, the police and cybersecurity in subsequent decades. It's been shown to be effective at raising complaints not just concerning individual businesses but also regarding systemic issues impacting consumers. An example of that is from 2018, when Citizens Advice UK submitted a super-complaint regarding conduct of companies in various markets where long-term and existing customers were being penalised and paying more for goods and services. It was like a loyalty penalty. As a result of the complaint, an investigation was launched which uncovered additional conduct, including stealth price rises, costly exit fees, restrictions on switching contracts and unfair auto renewal processes. This led to enforcement action against the companies involved, pricing interventions and a package of reforms, including recommendations to other UK regulators.

I accept that there are concerns that this may be happening in some sectors, so it's likely the proposed ACCC designated complaints function could result in similar broad enforcement and regulatory outcomes. But it also just shows the value of a review amendment being included in the bill to ensure that this new framework is working as intended. There are some issues that still require greater clarity, including the following questions: are we sure that the designated organisations will not capitalise commercially to increase their membership because of the added right they gain? And what's preventing designated entities only serving their own membership, rather than taking on board broader consumer concerns and complaints that may not come from their membership base?

Finally, I think we need to look at what the problem is that we're trying to solve. If it's a backlog of caseloads for the ACCC, it begs the broader question: is the ACCC sufficiently resourced to play the role that is necessary for it to ensure competition in our consumer markets? It also begs the question: shouldn't every complaint get a response from the ACCC? What is its resourcing issue and what is the process? The UK model shows that there can be positive outcomes from a framework and a triage process, but I do feel the government could provide greater clarity in its thinking and answers to some of the pertinent questions around the problems it's trying to solve. What other solutions or options have been looked at and what are the prospects or anticipated outcomes here?

I should say that we have a matter of public importance to be debated today around the current price gouging occurring in supermarkets and the duopoly we have when it comes to large supermarket chains and pricing in relation to food in Australia. Consumer and customer choice is incredibly pertinent in the conversation and the debate at the moment. The role the ACCC plays in that respect is incredibly important, and so we must make sure that it's sufficiently resourced to look out for consumers and customers, and to ensure complaints are truly investigated.

In that respect, I'd like to raise the concern of scams, because that's where consumers and customers are very frequently targeted. There's yet to be a mechanism that really protects consumers and customers from scams. Again, whether the ACCC has sufficient resources to properly investigate what's happening in that space is a really broad question—and where the responsibility lies. I know many individuals who have been the victims of scams, they find very little assistance and recourse from the systems and the processes. They are often let down by the financial institutions, who wipe their hands of any responsibility, and by the lack of access to data—getting any kind of investigation into those issues is incredibly difficult. I would urge the government to do more in relation to protecting consumers and customers in relation to scams.