Australian Competition And Consumer Commission Research Articles

Regulating the Fairness of Work Contracts in the Gig Economy

The growth of the ‘gig economy’ has prompted debate about the regulation of arrangements to obtain work and income through digital labour platforms. For platform workers who are classified as freelancers or independent contractors, rather than as employees, one possibility is to invoke general laws on the fairness of contractual terms to challenge the inclusion of harsh or one-sided provisions in the contracts of adhesion typically drafted and imposed by digital platforms. To test the potential application of one such regime, in pt 2-3 of the Australian Consumer Law ( ‘ACL’), we systematically analyse the terms and conditions used by various platforms intermediating work performed in Australia, within and across different industry sectors. Our analysis uncovers many examples of terms that are designated in s 25 of the ACL as potentially unfair or that have been identified as potentially problematic by the Australian Competition and Consumer Commission (‘ACCC’). We also examine the practical difficulties confronting a worker seeking to challenge the fairness of their contract terms, against the background of recent reforms to enhance the efficacy of this regime.

Commentary on the private practice implications of the Deed of Settlement in the Honeysuckle Health - NIB Australian-Competition-Tribunal-hearing.

To provide a commentary on the implications of the Deed of Settlement in the Honeysuckle Health - nib Australian-Competition-Tribunal Hearing. This hearing has major implications in relation to the potential for a single dominant private-health-insurance buying-group to contract for medical-purchaser-provider-agreements that might limit the clinical autonomy of patients and psychiatrists. The Australian Competition and Consumer Commission (ACCC) authorised the formation of a joint buying-group for private-health-insurers in 2021 to provide collective contracting and related services to private-health-insurers and other healthcare-payers. A consequent legal challenge resulted in a Deed of Settlement on 18 July 2022 that for 5years preserves doctor-patient autonomy in clinical decision-making, the medical gaps scheme, the transparency of contractual arrangements, and if clinical data of those insured are collected by HH-nib, it must be with the full informed consent of patients. However, there remain options for private-health-insurers to apply for formation of new buying-groups, as well as to collect data and profile the general public and insured patients using online programs. Vigilance on private-health-insurer buying-groups, and the potential for US-style managed-care is warranted.

Babies before bottom lines: A call for Australia to end exploitative marketing of commercial milk formula at home and abroad

Babies before bottom lines: A call for Australia to end exploitative marketing of commercial milk formula at home and abroad

New corporate players and educational policy: How might the Australian competition and consumer commission help us to understand AI’s associations with educational policy?

In the last decade education has experienced a shift from privatization to commercialization. This paper argues that the commercialization of education has evolved more recently as a result of artificially intelligent corporate players, enabling forms of insights sales called ‘Dark Advertising’. It unpacks how Dark Advertising are profiting from data-driven predictions that reveal where demand is emerging, rather than responding to perceived problems by examining reports by the Australian Competition and Consumer Commission (ACCC). Able to produce techno-solutions ‘just in time’ through Dark Advertising, Dark Advertising are considered to be enabling new forms of governance and influencing educational policy. Findings of the examination reveal associations in terms of teachers’ privacy, ability to provide consent, and agency. Arguably, circumnavigating Codes of Conduct and Privacy legislation, the author calls for greater scrutiny into various information asymmetries associated with Insight Sales strategies that predict, nudge and experiment with teachers’ behavior for profit.

Effective Merger Review: A Question for Australian Courts?

There is increasing global concern about the effectiveness of merger control in competition law. Globally, concerns about rising market concentration and in particular, the effect of consolidation by digital platform businesses, have prompted numerous inquiries and articles exploring whether competition laws are effective in addressing concerns about their anticompetitive impact in relation to mergers. Australia’s approach to merger control makes it an outlier in a number of ways. Its major approval procedure, informal clearance, is outside the scope of the Competition and Consumer Act 2010 (Cth). Formal decisions are generally heard in courts. Of note, under the current “likely substantial lessening of competition” test which became operative in 1993, the Australian Competition and Consumer Commission (ACCC) has not successfully proven in court that a merger would be likely to infringe the law. This article examines the methodology of Australian courts in applying this test, including the judicial approach to acceptance and assessment of economic and noneconomic evidence. It suggests approaches to enable consideration of the best evidence available. This analysis is in the context of amendments to the merger system recently proposed by the ACCC. We conclude that there are significant challenges in determining whether a merger is anticompetitive and that changes to the relevant methodology are necessary. This might be done by adopting the ACCC proposals or by a reconsideration of the merger factors and the approach to applying them.

Regional Mobile Telecommunications Access, Competition and Public Benefits

The Australian Competition and Consumer Commission (ACCC) received an application for merger approval from Telstra Corporation Limited and TPG Telecom Limited related to three interrelated agreements that would put in place a Multi-Operator Core Network (MOCN) arrangement. The three agreements include a MOCN Service Agreement, a Spectrum Authorisation Agreement, and a Mobile Site Transition Agreement. This paper considers the proposed arrangements, identifies that the ACCC’s failure to declare domestic mobile roaming in 2018 was, in some large part, responsible for the market environment that fostered the current proposal, and that the proposed arrangements are not a satisfactory mechanism to fundamentally improve the delivery of reasonably priced, open and competitive, reliable, and high-quality mobile telecommunications in regional and remote areas.

Digital Platforms and Journalism in Australia: Analysing the Role of Competition Law

News media businesses compete with search engines and social media networks for advertising revenue but at the same time depend on the latter to reach and interact with audiences. The Digital Platforms Inquiry (DPI) completed by the Australian Competition and Consumer Commission (ACCC) found that media businesses’ dependency on digital platforms gives companies like Google and Facebook substantial bargaining power over Australian news media businesses. This development over the past decade has caused negative repercussions for the choice and quality of news available to Australians. In response to thegse findings, Australia’s News Media and Digital Platforms Mandatory Bargaining Code 2021 extends the application of competition law into digital news and advertising markets. The reform is intended to address the impact of digital platforms on the commercial viability of Australian news companies. In this article, we assess the application of competition law to the relationship between news media and digital platforms, including the strength of the DPI findings and the appropriateness of the resulting reforms. We argue that after decades of deregulation of the media sector in Australia the News Media Bargaining Code is a hybrid legislation, which introduces news media industry regulations under the guise of competition law. While we see a continued role for competition law in digital platform markets, this article indicates the challenges posed by digital platforms on media pluralism and the limitations of a market-driven approach to news media policy. news media businesses, digital platforms, advertising, regulation, media policy, Australian competition law, market power, media pluralism, Digital Platforms Inquiry, News Media Bargaining Code

Submission on Australian Competition and Consumer Commission (ACCC) Digital Platform Services Inquiry - Discussion Paper Released for the Fifth Report

Submission on Australian Competition and Consumer Commission (ACCC) Digital Platform Services Inquiry - Discussion Paper Released for the Fifth Report

Filling the Void? A Critical Analysis of Competition Regulation of Collective Bargaining Amongst Non-employees

The rise of the gig economy, and the expansion of self-employment more generally, have magnified pre-existing concerns about how to address the risk of exploitation of non-employees, including franchisees, freelance journalists and owner-driver transport workers, amongst others. In a bid to fill relevant regulatory gaps, and correct destructive power imbalances, many are turning their attention to the power and potential of collective bargaining. At the same time, there is growing appreciation of how competition prohibitions against price-fixing may curb workers’ capacity to organize for decent wages and working conditions. There has been much discussion and debate about the need to expand existing labour exemptions from competition law in order to allow gig workers, and other vulnerable categories of selfemployed workers, to engage in lawful collective bargaining. Rather than fixating on questions of misclassification, however, this article considers a novel proposal emanating from the sphere of competition regulation in Australia. After extensive consultation and prolonged Parliamentary debate, the Australian Competition and Consumer Commission (ACCC) has adopted a class exemption which provides a broad legal immunity to eligible small businesses, including self-employed workers, wishing to engage in collective bargaining. The ACCC’s Determination to extend collective bargaining rights to small businesses – with effect from 3 June 2021 – represents a highly progressive approach and one worthy of greater attention and deeper analysis. To assess the regulatory value of this unique approach, we draw upon the International Labour Organization (ILO) standards relating to collective bargaining and freedom of association. In doing so, we critically assess the extent to which the ACCC’s approach offers a potential solution to resolving the tension between labour law and competition law when it comes to the regulation of self-employed workers. Somewhat surprisingly, we find that the class exemption largely complies with relevant ILO principles, despite the fact that it does little in terms of actively promoting or encouraging effective collective bargaining. For example, in line with ILO conceptions of voluntariness, the class exemption places virtually no restrictions on the scope, level or subject matter of the bargaining. Ultimately, however, we argue that if collective bargaining is to have any chance of filling the regulatory void which exists between labour law and competition law, it is critical that basic structures and supports are in place to facilitate meaningful bargaining: where collective activity is supported by trade union autonomy and the right to engage in strikes in support of bargaining demands and concluded agreements. Mercosur, Socio-Labour Declaration, Argentina, Brazil, Uruguay, Paraguay, Venezuela, Regional Integration, Labour Rights, Regional Trade Blocs, Latin America, Global South

Going Dark

Going Dark

(mis)Informed Consent in Australia

(mis)Informed Consent in Australia

The Turn to Regulation in Digital Communication: The ACCC’s Digital Platforms Inquiry and Australian Media Policy

This article provides an overview of the Australian Competition and Consumer Commission (ACCC) Digital Platforms Inquiry, as a case study in the new thinking about digital platform regulation taking place in many nations. With its focus upon the impact of digital platforms on news and journalism, the ACCC Inquiry parallels other reviews, such as the Cairncross Review on the Future of Journalism in the United Kingdom. While the Inquiry had a somewhat ‘accidental’ history, the core issues that it raised have acquired considerable political resonance in Australia. The concept of harms provides a useful lens through which to understand the ACCC’s focus, as it identified harms caused by the market dominance of Google and Facebook for traditional news media businesses, and for consumers and citizens. Responding to the ACCC Final Report will present challenges in identifying the public good dimension of journalism and who should pay for it, the scope and reach of digital platform regulation and its relationship to media policy and regulation, and the scope for small nations to effectively manage the power of global digital platform giants.

Competition and Consumer Watchdog Spurs Australian Privacy Changes

Competition and consumer laws are becoming a major element of data privacy protection in Australia, particularly in relation to digital platforms, often in advance of similar developments in other parts of the world. The country’s competition regulator, the Australian Competition and Consumer Commission (ACCC), has been at the centre of these developments for the last three years. This article discusses four related developments: (i) The ACCC is suing Google for misleading conduct in respect of its location data practices, alleging that certain Google account settings made the misleading representation that users had opted out of location data retention. (ii) The ACCC is also suing Google for misleading conduct in respect of its communications to consumers about its aggregation of personal information from its various services (Google search engine, YouTube etc) with data collected via third-party websites, for commercial purposes including advertising. (iii) The ACCC has raised preliminary concerns about Google’s acquisition of Fitbit, because of the potential anticompetitive effects of merging personal information collected by the two businesses. (iv) The Australian government is proposing to enact a raft of reforms to Australia’s out-of-date privacy laws (an Issues Paper has been released), and to consider further reforms, resulting from ACCC recommendations in 2019, reforms which will give the ACCC an ongoing role in regulating privacy and digital platforms. The ACCC is also the key player in another challenge to the predominance of Google and Facebook in the Australian digital landscape, because it is implementing a government-supported mandatory code which will require the platforms to pay for displaying Australian commercial news content on their platforms. (Legislation is now before the Australian Parliament.) What is the potential cumulative effect of these developments on surveillance capitalism in Australia?

The turn to regulation in digital communication: the ACCC’s digital platforms inquiry and Australian media policy

This article provides an overview of the Australian Competition and Consumer Commission (ACCC) Digital Platforms Inquiry, as a case study in the new thinking about digital platform regulation taking place in many nations. With its focus upon the impact of digital platforms on news and journalism, the ACCC Inquiry parallels other reviews, such as the Cairncross Review on the Future of Journalism in the United Kingdom. While the Inquiry had a somewhat ‘accidental’ history, the core issues that it raised have acquired considerable political resonance in Australia. The concept of harms provides a useful lens through which to understand the ACCC’s focus, as it identified harms caused by the market dominance of Google and Facebook for traditional news media businesses, and for consumers and citizens. Responding to the ACCC Final Report will present challenges in identifying the public good dimension of journalism and who should pay for it, the scope and reach of digital platform regulation and its relationship to media policy and regulation, and the scope for small nations to effectively manage the power of global digital platform giants.

‘MARKING THEIR OWN HOMEWORK’: TRUST AND AUDIENCE MEASUREMENT IN THE AUSTRALIAN DIGITAL ADVERTISING INDUSTRY

This paper examines how the Australian advertising industry debates trust in the infrastructures of digital advertising. The advertising industry is undergoing a major change as digital advertising is increasingly dominated by new advertising technology (adtech) players and major tech companies such as Facebook and Google. These new companies which rely on automated systems of ad targeting, pricing and placement to control large amounts of digital advertising inventory and offer new more ‘efficient’ ways to micro-target advertising.
 Yet these companies have garnered reputations for misrepresenting their numbers; a problem compounded by Google and Facebook’s reticence to provide independent audience verification. This has led to a high degree of mistrust from Australian advertisers. Neither Google or Facebook offers serious third-party auditing, leading many in the advertising industry to say that they are ‘marking their own homework’.
 In this paper I ask, how is trust of measurement and verification infrastructures debated within the digital advertising industry? Is it fair to compare businesses that distribute advertising in very different ways? I answer these questions through qualitative analysis of submissions made to the Australian Competition and Consumer Commission (ACCC) as part of its current Digital Platforms Inquiry (DPI) in 2018 and 2019. I also draw on summaries of four public forums the ACCC held in 2018 as well as wide reading in the advertising industry trade press. This paper aims to contribute to a better understanding of the role standards and measures play within industry and how they relate to trust during industry transformation.

Data and digital rights: recent Australian developments

Data privacy rights is one of the most urgent issues in contemporary digital policy. In the face of insurgent citizen activism and outcry, national governments are looking for options to address this problem - something difficult for many jurisdictions when they lack robust, responsive policy frameworks, even in the wake of the call to act represented by the European General Data Protection Regulation (GDPR). In this paper we explore two Australian developments in 2018-2019 which take up the challenge: proposals from the Australian Competition and Consumer Commission (ACCC)'s Digital Platforms Inquiry to more stringently regulate social media companies when it comes to data privacy; and the government-mandated creation of a Consumer Data Right. Both policy initiatives seek to grapple with the widening pressure to provide better public domain information, fair and effective options for users to exercise choice over how they configure technologies, and strengthened legal frameworks, enhanced rights, and better avenues redress. However, in our analysis, we find little evidence that the initiatives are joined up, or connected by any common goal of really understanding, or acting on, citizen concerns to do with data privacy threats.

Digital Platforms: The Need to Restrict Surveillance Capitalism (Australian Privacy Foundation Submission to the Australian Competition and Consumer Commission (ACCC) – Digital Platforms Inquiry – Preliminary Report

Digital Platforms: The Need to Restrict Surveillance Capitalism (Australian Privacy Foundation Submission to the Australian Competition and Consumer Commission (ACCC) – Digital Platforms Inquiry – Preliminary Report

Monitoring quality of service at Australian airports: A critical analysis

The quality of service monitoring forms a key element of the current light-handed regulation at Australian airports. The ACCC (Australian Competition and Consumer Commission) evaluates and publicly reports the quality of service levels of the four largest airports on a yearly basis to pressure airports to maintain an acceptable service performance. This article aims to provide an in-depth analysis of the methodology used by the ACCC. This analysis includes a critical review of the methodology based on secondary information in combination with primary research (i.e., data from 21 semi-structured interviews) that considers the current perception of the methodology among key stakeholder groups. The research finds that the methodology used by the ACCC is underpinned by some limitations, putting in question its effectiveness, reliability and validity. Particularly, its weak design does not allow for a comprehensive interpretation of the reported results or a reliable comparison across monitored airports, thus reduces transparency. Stakeholders pointed out that it is not possible to evaluate whether an airport undertakes infrastructure investments that ensure both the efficiency of ongoing airport operations and appropriate levels of service quality. These limitations add to the perception that the ACCC in its current function is not a ‘credible threat’ to airports with market power. Recommendations and future research directions are provided to address the identified limitations.

Quality of information about success rates provided on assisted reproductive technology clinic websites in Australia and New Zealand.

Many factors influence the chance of having a baby with assisted reproductive technologies (ART). A 2016 Australian Competition and Consumer Commission (ACCC) investigation concluded that ART clinics needed to improve the quality of information they provide about chance of ART success. To evaluate changes in the quality of information about success rates provided on the websites of ART clinics in Australia and New Zealand before and after the ACCC investigation. Desktop audits of websites of ART clinics in Australia and New Zealand were conducted in 2016 and 2017 and available information about success rates was scored using a matrix with eight variables and a possible range of scores of 0-9. Of the 54 clinic websites identified in 2016, 32 had unique information and were eligible to be audited. Of these, 29 were also eligible to be audited in 2017. While there was a slight improvement in the mean score from 2016 to 2017 (4.93-5.28), this was not statistically significantly different. Of the 29 clinics, 14 had the same score on both occasions, 10 had a higher and five a lower information quality score in 2017. To allow people who consider ART to make informed decisions about treatment they need comprehensive and accurate information about what treatment entails and what the likely outcomes are. As measured by a scoring matrix, most ART clinics had not improved the quality of the information about success rates following the ACCC investigation.

Protecting Consumer Privacy and Data Security: Regulatory Challenges and Potential Future Directions

This article considers the regulatory problems of online tracking behaviour, lack of consent to data collection, and the security of data collected with or without consent. Since the mid-1990s the United States Federal Trade Commission has been using its power under the United States consumer protection regime to regulate these problems. The Australian Competition and Consumer Commission (ACCC), on the other hand, has yet to bring civil or criminal proceedings for online privacy or data security breaches, which indicates a reluctance to employ the Australian Consumer Law (‘ACL’) in this field.1 Recent legislative action instead points to a greater application of the specifically targeted laws under the Privacy Act 1988 (Cth) (‘Privacy Act’), and the powers of the Office of the Australian Information Commissioner (OAIC), to protect consumer privacy and data security. This article contends that while specific legislation setting out, and publicly enforcing, businesses’ legal obligations with respect to online privacy and data protection is an appropriate regulatory response, the ACL's broad, general protections and public and/or private enforcement mechanisms also have a role to play in protecting consumer privacy and data security.