Competition and Consumer (Designated Complaints) Determination 2024

Designated complaint. Part XIE of the Act introduces a new category of complaint that a designated complainant may make to the Commission. The determination does not define the term itself; it relies on the Act’s definitions. Instead, the determination prescribes limits and procedures that apply to such complaints. A designated complaint is one that meets the requirement in section 5: the complainant must not have made another designated complaint in the preceding 12 months. This is a hard frequency constraint. The complaint must also satisfy any other requirements in Part XIE (not reproduced in this determination), and the determination expands the Commission’s discretion to decline to act on it.

Designated complainant. Part 3 of the determination deals with who can be a designated complainant. An entity must apply for approval from the Minister during an open application window (section 10). The Minister must consider the applicant’s ability to research, prepare and make designated complaints based on high-quality information (section 11(1)(a)). If the applicant has commercial activities, the Minister must also consider any conflicts of interest and the applicant’s arrangements to manage or mitigate them (section 11(1)(b)). The Minister may additionally consider factors such as the applicant’s willingness to cooperate with the Commission, its past conduct as a designated complainant, its relationship with consumers or small businesses, whether both consumer and small business interests will be represented, and its access to timely, high-quality data (section 11(2)). There can be no more than three designated complainants at any one time (section 12).

Further action. The Act (not the determination) defines a further action notice. The determination in section 8 prescribes the only circumstances in which the Commission is not required to take action after issuing such a notice: those circumstances must be exceptional, have significantly constrained the Commission’s ability to act, and must have prevented or will prevent action for more than six months after the notice was given. This is a demanding triple test.

No further action. Sections 6 and 7 give the Commission authority to abandon a designated complaint at the threshold. Section 6 makes it mandatory for the Commission to take no further action if the complaint’s subject is already covered by certain legal proceedings or inquiries (ASIC or Commission proceedings not yet ended, or ongoing ASIC or Productivity Commission inquiries). Section 7 then establishes a two-tier set of considerations for cases not caught by section 6. The Commission must consider three mandatory factors: the nature and significance of the market issue, the nature and extent of actual or potential harm, and whether action is likely to have a broad public benefit (section 7(1)). It may also consider up to five discretionary factors, including similarity to past complaints, existence of other legal proceedings or government inquiries, cost to the Commission, and any other relevant matter (section 7(2)).

Publication. Section 9 relieves the Commission of the obligation to publish information about a designated complaint if publication would contravene any Commonwealth, State or Territory law, would harm an ongoing investigation that has not been made public, or would contravene a court or tribunal order.

Application window. Section 10 requires the Department to set recurring application periods of at least three consecutive weeks, at least once every three years, with start and end dates published on its website. This is a narrow window that limits the ability of potential complainants to seek approval at any time.

The determination directly affects three categories of actors. First, the Commission (ACCC) is the primary addressee. Sections 5 through 9 direct how the Commission must process designated complaints: it must reject a complaint that breaches the 12-month limit; it must take no further action where section 6 applies; it must have regard to the mandatory factors in section 7(1) before deciding to take no further action; it may consider the discretionary factors; it may stop further action only in the exceptional circumstances defined in section 8; and it is excused from publication obligations in three specified situations. The Commission’s discretion is structured but still broad, given the open-ended nature of factors such as “any other relevant matter” (section 7(2)(e)) and “broad public benefit” (section 7(1)(c)).

Second, consumer and small business advocacy organisations are the intended designated complainants. The determination limits the pool to a maximum of three entities at any time. This is a binding cap (section 12). Any entity that wishes to become a designated complainant must navigate the application process described in sections 10 and 11. The criteria in section 11(1) require the Minister to assess the applicant’s ability to make high-quality complaints. Where the applicant has commercial activities (for example, an industry association that also provides fee-based services), the Minister must scrutinise conflicts of interest. This may disqualify or discourage entities that lack robust separation between advocacy and commercial arms. The discretionary factors in section 11(2) also let the Minister consider past performance, so a designated complainant that has submitted weak or unactionable complaints may find its renewal denied.

Third, consumers and small businesses are the ultimate beneficiaries in whose interests designated complaints are made. However, the determination does not give them a direct right to make a designated complaint; that right belongs only to approved designated complainants. Consumers and small businesses are affected indirectly: the quality, frequency and focus of designated complaints will depend on which three entities hold the status, how they prioritise issues, and how the Commission applies its no-further-action powers. The systemic nature requirement in section 7(1)(a) means that isolated individual grievances are unlikely to ground a designated complaint.

Fourth, ASIC and the Productivity Commission are referenced in section 6. If either body has ongoing proceedings or inquiries into the same subject matter, the Commission must take no further action on the designated complaint. This prevents duplication but also means a designated complainant cannot force the Commission to act where another agency is already involved.

Fifth, the Minister (the Assistant Minister for Competition, Charities and Treasury, as the instrument’s maker) is the decision-maker for approving designated complainants. The determination imposes mandatory and discretionary criteria on that approval process. The Minister must also publish the application periods on the Department’s website (section 10(b)).

Duty of the Commission when considering no further action. Under section 7(1), the Commission must have regard to three matters before it can be satisfied that it is appropriate to take no further action: the nature and significance of the market issue, the extent of actual or potential harm, and the likelihood of broad public benefit from Commission action. This is a compulsory checklist. If the Commission fails to consider any of these, its decision may be open to judicial review. The Commission may also consider the five discretionary matters in section 7(2), but is not required to do so.

Duty to take no further action in certain cases. Section 6 is phrased as a prescription for the purposes of paragraph 154ZH(4)(b) of the Act. The effect is that where the subject of a designated complaint is already the subject of ongoing legal proceedings to which ASIC or the Commission is a party, or an ongoing ASIC or Productivity Commission inquiry, the Commission must not take further action. This removes discretion.

Duty of the Minister when approving designated complainants. Section 11(1) sets out two mandatory considerations: the applicant’s ability to make complaints on which the Commission may take action (including research capability and information quality), and, if the applicant has commercial activities, its conflicts of interest and mitigation arrangements. The Minister may also consider the five additional factors in section 11(2). The Minister’s decision is not otherwise fettered, but must take into account the facts and the prescribed matters.

Right of designated complainants to make complaints. A designated complainant has the right to make a designated complaint, but only one per 12-month period (section 5). This is a right in the sense that the Commission must accept the complaint for processing, but the Commission can then decide to take no further action under sections 6 or 7, or proceed to a further action notice subject to the exceptional circumstances carve-out in section 8. The right is therefore a right of access to a heavily filtered process rather than a right to substantive action.

Right of the Commission to not publish information. Section 9 gives the Commission a right (or exemption) to withhold publication in three circumstances: legal prohibition, harm to an unpublished ongoing Commission investigation, or contravention of a court or tribunal order. This overrides any general publication obligation under Part XIE.

No right to appeal or review within the determination. The determination does not create any internal merits review mechanism. A designated complainant whose complaint is the subject of a no-further-action decision, or whose application for approval is refused, would need to rely on general administrative law remedies under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or the Constitution.

The determination itself does not create any civil or criminal penalties. It is a prescriptive instrument that directs the behaviour of the Commission and the Minister. Enforcement of the underlying Part XIE regime comes from the Act, not the determination. However, several consequences flow from non-compliance with the determination.

If the Commission purports to take no further action on a designated complaint without considering the mandatory factors in section 7(1), or if it takes no further action in a case where the subject matter is not within section 6 (and it acts under a mistaken belief that section 6 applies), its decision may be invalid for jurisdictional error. The designated complainant could seek judicial review to set aside the decision and compel the Commission to re-exercise the power according to law.

Similarly, if the Minister approves a designated complainant without considering the mandatory criteria in section 11(1), the approval may be invalid. The determination itself does not prescribe any penalty for the approved complainant if conflicts later emerge, but the Minister could presumably decline to renew approval at the next application period.

The most significant consequence for the Commission arises under section 8. If the Commission issues a further action notice and then fails to take action, it can only cease action if all three conditions in section 8 are met: exceptional circumstances, significantly constrained ability, and prevention of action for more than six months. If the Commission ceases action without meeting that test, it would breach the Act (not the determination). A designated complainant could potentially seek an order compelling the Commission to comply with its duty under the Act.

There are no penalties for designated complainants who breach the 12-month limit in section 5. The consequence is procedural: the complaint would not meet the requirement and the Commission would not accept it as a valid designated complaint. If a designated complainant makes a second complaint within 12 months, the Commission should reject it.

The enforcement of the entire regime ultimately rests on the possibility of judicial review. Given the capped number of designated complainants (three) and the low frequency of complaints (one per year per complainant), the number of reviewable decisions will be very small. This makes the practical enforcement of the determination’s duties dependent on the willingness of those three entities to litigate.

The determination is made under section 154ZZ of the Competition and Consumer Act 2010 (Cth) (the Act). It sits within Part XIE of the Act, which is titled “Designated complaints”. The determination prescribes matters that the Act leaves to be prescribed by legislative instrument. It cannot go beyond the scope of the enabling provisions. For example, the determination’s section 5 prescribes the maximum number of designated complaints in a 12-month period for the purposes of paragraph 154ZF(2)(d) of the Act. If the Act’s provisions are later amended, the determination may need to be updated.

The determination interacts with the Australian Securities and Investments Commission Act 2001 (Cth) through section 6, which prescribes legal proceedings to which ASIC is a party. If ASIC is running a proceeding related to the same subject matter, the Commission must not take further action on the designated complaint. This prevents the Commission from duplicating ASIC’s work, but it also means a designated complainant cannot use the Part XIE route to force the Commission to act on an issue ASIC is already handling.

The determination also references the Productivity Commission Act 1998 (Cth) indirectly through section 6(b), which covers ongoing inquiries or reviews being conducted by the Productivity Commission. If the Productivity Commission is examining the same market issue, the Commission must again take no further action. This could be a significant blocking mechanism: given the Productivity Commission’s capacity to conduct broad market studies, many competition issues could fall within its ambit.

Section 9(a) interacts with any Commonwealth, State or Territory law that prohibits publication of information. This includes secrecy provisions in other statutes, such as the Criminal Code provisions on unauthorised disclosure of government information, or specific secrecy provisions in industry-specific legislation. Section 9(b) interacts with the Commission’s own investigative powers; it preserves the confidentiality of investigations that have not been made public. Section 9(c) interacts with court or tribunal orders that restrict publication, such as suppression orders.

Section 10, which sets the application period, is to be implemented via the Department’s website. The start and end dates of each recurring period are not in the determination itself; they will be published on the Department’s website from time to time. This interacts with the general transparency obligations of the Legislation Act 2003 (Cth), under which legislative instruments must be registered and published. The website publication is likely an administrative act, not a legislative instrument, so it may not be reviewable in the same way.

Section 11(1)(b) requires the Minister to consider conflicts of interest if the applicant has commercial activities. This interacts with general competition and corporations law regarding conflicts of interest and related party transactions. The determination gives the Minister wide discretion to assess those arrangements.

The determination’s note to section 4 states that expressions have the same meaning as in the Act as in force from time to time, by virtue of paragraph 13(1)(b) of the Legislation Act 2003 (Cth). This means the determination is dynamic: if the Act changes its definitions, the determination’s terms automatically change, without amendment to the determination itself.

The determination was made on 29 April 2024 by Dr Andrew Leigh, Assistant Minister for Competition, Charities and Treasury, and was registered as a legislative instrument. Its commencement is tied to the commencement of Schedule 1 to the Competition and Consumer Amendment (Fair Go for Consumers and Small Business) Act 2024. As of the determination’s date, no amendments have been made to it. The instrument’s own provisions do not contain an amending mechanism; any future changes would require a new legislative instrument by the Minister (or a successor) under the same power in section 154ZZ of the Act. The determination is relatively new, and the underlying Act has not yet commenced in full (the commencement table says the whole instrument commences at the same time as the amendment act). The Parliament passed the amendment act in 2024, and the determination is a companion instrument ready to take effect upon the act’s proclamation. Because the determination is a legislative instrument, it could be amended by later instruments, but none have been made. The Minister gave no published explanation of why particular numbers (the cap of three, the 12-month limit, the three-week application period) were chosen. The instrument contains no sunset clause beyond any general sunsetting under the Legislation Act 2003. The determination is not accompanied by a regulation impact statement, presumably because it is a minor procedural instrument under an existing Act.

As of the determination’s date (29 April 2024) and the knowledge cut-off of this analysis, there is no reported litigation involving the determination. The determination has not yet commenced (it will commence with the amendment act), so no designated complaints have been made or refused. Any future litigation would likely focus on the Commission’s decisions to take no further action under sections 6 or 7, or the Minister’s refusal to approve an applicant under sections 10 and 11.

Potential grounds of challenge include: failure to take into account a mandatory consideration (section 7(1) or section 11(1), as applicable); taking into account an irrelevant consideration; jurisdictional error in applying section 6 (for example, if the Commission mistakenly thinks a Productivity Commission inquiry covers the subject matter when it does not); unreasonableness in applying the exceptional circumstances test in section 8; or denial of natural justice in the approval process (the determination is silent on procedural fairness, but the common law may imply a hearing requirement before refusing an application). Judicial review would be under the Administrative Decisions (Judicial Review) Act 1977 (Cth) or the original jurisdiction of the Federal Court under section 39B of the Judiciary Act 1903 (Cth). Because the cap of three designated complainants creates scarcity, there is a real prospect of competition for approval and subsequent litigation by disappointed applicants. The Minister’s mandatory consideration of conflicts of interest (section 11(1)(b)) could also be contested if an applicant argues the Minister mischaracterised its commercial activities or demands for conflict management are disproportionate. No constitutional issues are apparent; the determination is made under a valid Commonwealth head of power (the corporations power and the trade and commerce power supporting the Act).

The 12-month complaint limit is per complainant, not per subject matter. Section 5 prohibits a designated complainant from making more than one designated complaint in any rolling 12-month period. This forces each designated complainant to choose its battles carefully. If a complainant makes a complaint on a niche issue, it forfeits the ability to complain about a more systemic issue that arises later in the same year. The cost of a bad choice is high. There is no exception for urgency or emergency.

The exceptional circumstances test in section 8 is extremely narrow. The Commission can only stop further action after issuing a further action notice if three cumulative conditions are met: exceptional circumstances, significant constraint on the Commission’s ability to act, and prevention of action for more than six months. This means once the Commission issues a notice, it is locked into taking action unless something truly extraordinary happens. The Commission may therefore be reluctant to issue further action notices in borderline cases, preferring to use the no-further-action power early.

Section 6 is a mandatory bar, not a discretionary power. If the subject of a designated complaint overlaps with any ongoing ASIC or Commission legal proceeding, or any ASIC or Productivity Commission inquiry, the Commission has no choice: it must take no further action. This can be triggered by very broad Productivity Commission inquiries that happen to touch on the subject matter. A designated complainant could find its complaint blocked by a general inquiry that examines the industry but not the specific conduct complained about.

The Minister’s consideration of conflicts of interest (section 11(1)(b)) may disqualify many advocacy organisations. Many consumer and small business advocacy groups have some commercial activities, such as training, publications, or fee-based membership services. The Minister must consider any conflicts of interest and the applicant’s arrangements to manage them. This could lead to a subjective assessment where the Minister demands high walls between advocacy and commercial arms. If an applicant’s conflict management is deemed inadequate, the application can be refused.

The cap of three designated complainants is a hard limit. Section 12 says “a limit of 3 designated complainants is prescribed”. Once three entities are approved, no more can be approved, even if a new organisation is better placed to represent small business or consumers. Existing complainants are not forced to represent all interests. The Minister’s discretionary factor in section 11(2)(d) says the Minister may consider whether both consumer and small business interests will be represented by one or more complainants, but the Minister cannot require a single complainant to represent both if the cap means only three exist.

The application window is narrow and infrequent. Section 10 requires at least one period of at least three consecutive weeks at least once every three years. This means an organisation that misses the window must wait up to three years to apply. There is no rolling or continuous application process. This could lock out new organisations. The start and end dates are set on the Department’s website, not in the instrument, so the timing is not fixed and could be changed administratively.

Publication exemptions are broad. Section 9(b) exempts the Commission from publishing information if it would harm an ongoing investigation that has not been made public. This is self-judging: the Commission decides whether publication would harm an investigation. A designated complainant may never know whether the Commission took action or simply concluded that further action would harm an existing investigation. The exemption does not require the Commission to inform the complainant.

For an entity that wishes to become a designated complainant, compliance begins with monitoring the Department’s website for the opening of an application period under section 10. The period will last at least three consecutive weeks, and occurs at least once every three years. The applicant should prepare documentation addressing the mandatory considerations in section 11(1). This means assembling evidence of its ability to research, prepare and make high-quality designated complaints, including examples of past advocacy reports, access to data, and expert staff. If the applicant has any commercial activities (paid training, subscription services, sale of reports, consultancy), it must prepare a detailed conflicts analysis and a written conflicts management policy. The Minister must consider these. The applicant should also consider the discretionary factors in section 11(2). While these are not mandatory, addressing them strengthens the application. For example, the applicant should demonstrate its willingness to cooperate with the Commission and its ability to respond to requests promptly. If the applicant has been a designated complainant before, it should include a record of past complaints and their outcomes, showing that they were actionable and resulted in Commission action. The applicant should also demonstrate ongoing relationships with consumers or small businesses, such as membership numbers, regular newsletters, outreach events, and feedback mechanisms. To address the Minister’s possible concern about representation (section 11(2)(d)), the applicant should show whether it represents consumer interests, small business interests, or both, and explain how the existing pool of complainants would cover the gaps.

Once approved, the designated complainant must comply with the limit in section 5: it may make one designated complaint in any 12-month period. The complainant must therefore prioritise issues carefully. Before making a complaint, it should check whether the subject matter is already the subject of any proceedings or inquiries caught by section 6. If it is, the Commission will be forced to take no further action, so the complaint would be wasted. The complainant should also consider the Commission’s mandatory factors in section 7(1) when drafting the complaint. The complaint should clearly articulate the nature and systemic significance of the market issue, the harm to consumers or small business (including potential harm if no action is taken), and the broad public benefit that Commission action would achieve. This makes it more likely the Commission will proceed rather than take no further action.

If the Commission issues a further action notice, the designated complainant should monitor whether the Commission complies. If the Commission ceases action, it must meet the exceptional circumstances test in section 8. The complainant can request information about why action ceased (though the Commission may refuse to publish under section 9). If the Commission’s cessation appears to breach the Act, the complainant may consider legal action to compel compliance.

For the Commission itself, compliance requires strict adherence to the mandatory criteria in sections 6 and 7(1). The Commission should document its consideration of each mandatory factor in section 7(1) when deciding to take no further action. It should also record any reliance on the discretionary factors in section 7(2). When considering whether to cease action under section 8, it must satisfy all three limbs: exceptional circumstances, significant constraint, and prevention of action for more than six months. Any publication decisions should be checked against section 9.

For the Minister, compliance with section 11(1) requires recording consideration of both mandatory criteria (ability to make high-quality complaints and conflict management) in the approval decision. The Minister may consider the discretionary factors but is not required to. The Minister should publish the application periods on the Department’s website as required by section 10(b).