John Durie: Labor to introduce super complaints function to fast-track small business grievances to the ACCC

Small business will gain new powers under plans by the new federal government to add a special super complaints function to the Australian Competition and Consumer Commission (ACCC) to give the Council of Small Business Organisations Australia (COSBOA) or other small business representatives a fast track to recommend investigations or actions.

At present, such bodies would have to go through regular channels but the new pathway would speed up the process and carry more weight.

New Assistant Treasurer for Competition Andrew Leigh told SmartCompany the new complaints avenue for small business representatives, and Choice in consumer actions, would provide better channels to the ACCC from “trusted representative bodies”.

Other international jurisdictions already had such a mechanism in place, says Leigh, and the ACCC is looking at just how this will work in practice.

Leigh says the immediate priority for the newly-elected government is the introduction of the unfair contract terms legislation, which was left on the books by the previous Coalition government.

“The new law would make it illegal to include in contracts unenforceable terms, to help even the bargaining table between big and small business,” said Leigh. 

Under present law, the unenforceable term can be scrapped but the contract would stay in place. The new law would make the entire contract void and be subject to pecuniary penalties.

Lawyers are already advising big business clients to be aware of the changes and ensure their contracts comply with the intent of the law. 

Leigh also says the government will go ahead with increased penalties for breaches of the Competition Act, with plans for a five-fold increase from $10 million to $50 million for each offence.

The changes are supported by ACCC chief Gina Cass-Gottlieb.

Leigh is a long-term advocate of increased powers for the ACCC and spoke back in 2019 of his concerns over the increase in concentration of Australian industry.

“We have seen a surge in mergers and decline in startups,” he told SmartCompany in an interview .

Cass-Gottlieb has noted the ACCC is looking at long-term reform proposals including merger pre-clearances, which would require merger parties to get approval before proceeding and notify the ACCC of deals in advance.

She is yet to commit fully to the proposal advanced by her predecessor Rod Sims.

The new government has already seen value in ACCC references, with Treasurer Jim Chalmers formally requesting advice on the present energy crisis.

The formal request triggers increased powers for the ACCC to demand internal company documents and board papers as part of its investigations.

The ACCC already has this power for gas companies as part of ongoing scrutiny and this week’s reference from Chalmers effectively increases the scope and breath of such powers.

However, politically it allows government to say it is doing something without actually doing anything.