Competition and Consumer (Price Inquiry—Home Loans) Direction 2019

The instrument rests on a small set of definitional and directional concepts that determine scope and the analytical frame the Commission must apply.

Definitions and cross-references

• The instrument imports a number of defined terms from other statutes: “authorised deposit‑taking institution” from the Banking Act 1959; “Australian credit licensee” from the National Consumer Credit Protection Act 2009; “residential premises” the same as in the A New Tax System (Goods and Services Tax) Act 1999; and multiple terms (including “exempt supply”, “goods”, “inquiry”, “price”, “services”, “State or Territory authority”, and “supply”) from subsection 95A(1) of the Competition and Consumer Act 2010 (s 4). The instrument therefore ties its vocabulary to pre-existing statutory definitions rather than restating them.

Scope of the inquiry

• The inquiry’s subject is “home loan”, defined here as a loan secured by a mortgage over one or more residential premises (s 4). That limits the inquiry to secured residential lending; unsecured consumer credit or business lending is not encompassed by the instrument’s “home loan” term as defined.
• Suppliers in scope are those in s 5(2): home loans supplied by authorised deposit‑taking institutions; home loans supplied by Australian credit licensees; and home loans supplied by a person who would be covered by the first two paragraphs but for an exemption under the Banking Act 1959 or the National Consumer Credit Protection Act 2009 (s 5(2)). The inclusion in (c) indicates the Commission is to look beyond plain statutory licensing status where an exemption otherwise shields a supplier.

Exclusions and limits

• The inquiry must not extend to supplies by State or Territory authorities, exempt supplies, the conduct of APRA or ASIC, or the conduct of mortgage brokers (s 5(1)(a)-(d)). The instrument expressly notes that the matters in (c) and (d) fall within the scope of other inquiries, signalling an intentional division of investigatory territory (s 5(1) note).
• The Commission is also forbidden from holding the inquiry “in relation to the supply of goods and services by a particular person or persons” (s 5(3)). This is a restraint on targeted inquiry into named firms or specified actors.

Directed analytical matters

• Section 6 lists the matters the Commission is required to take into consideration. Those include prices charged since 1 January 2019 and three particular price-related subtopics: (i) advertised versus actually charged/prices paid, focusing on published interest rates versus rates paid by customers; (ii) differences between prices charged to existing customers and new customers; and (iii) supplier pricing following changes in the RBA cash rate, with attention to suppliers’ access to and costs of finance, and the timing of announcement and implementation of price changes (s 6(a)(i)-(iii)).
• Section 6 also directs the Commission to examine impediments to switching created by supplier practices and product features including bundling (s 6(b)), and other impediments such as consumer behaviour (decision‑making biases) and public availability of information about prices actually being charged or paid (s 6(c)(i)-(ii)).

Process priorities and timeframe

• The Commission must “have particular regard to the activities of those with the largest shares of outstanding home loans by market value” (s 7(a)). This instructs the Commission to focus attention on the largest market participants.
• Reporting deadlines are imposed: an interim report to the Treasurer by 30 March 2020 (s 7(b)), and completion of the inquiry with a report to the Treasurer by no later than 30 November 2020 (s 8).

The instrument therefore establishes a tightly delimited investigatory frame: secured residential loans only; suppliers drawn from regulated deposit-takers and credit licensees (and the functional equivalents notwithstanding exemptions); specified exclusions; a bounded recent period for price analysis from 1 January 2019; and a set of precise issues the Commission must examine (advertised vs actual rates, incumbent/new customer pricing differentials, transmission of RBA cash rate changes, switching impediments, product bundling and consumer information). The instrument relies on statutory definitions outside its text, so interpretation of its scope requires reference to those other Acts.

The instrument designates a compact set of actors who will be directly or indirectly affected by the Commission’s inquiry and who must expect attention or to supply information as the inquiry proceeds.

Primary subjects of inquiry

• Authorised deposit‑taking institutions (ADIs): explicitly listed as in-scope suppliers of home loans (s 5(2)(a)). These are the largest suppliers by market share in most home‑loan markets; the instrument also requires the Commission to have particular regard to those with the largest shares of outstanding home loans by market value (s 7(a)). ADIs should therefore expect focused attention, particularly if they are among the largest lenders.
• Australian credit licensees: included in s 5(2)(b). Non‑bank lenders holding a credit licence fall within the inquiry’s scope when supplying home loans.
• Persons functionally equivalent but exempt: s 5(2)(c) brings into scope persons who would be covered by (a) or (b) if not for an exemption under the Banking Act 1959 or the National Consumer Credit Protection Act 2009. That language reaches entities that are, in substance, similar suppliers despite statutory exemptions.

Excluded or limited actors

• State and Territory authorities: supply of goods or services by a State or Territory authority is excluded from the inquiry (s 5(1)(a)). State-provided lending arrangements are therefore outside the inquiry’s compass.
• Exempt supplies: the instrument excludes “exempt supply” as defined in s 95A(1) of the Act (s 5(1)(b)). The definition originates in the Act and is not restated here; its application will affect whether particular transactions fall within scope.
• APRA and ASIC: the inquiry is not to extend to the conduct of the Australian Prudential Regulation Authority or the Australian Securities and Investments Commission (s 5(1)(c)). The instrument notes those matters fall within the scope of other inquiries, allocating regulatory responsibility.
• Mortgage brokers: the instrument excludes the conduct of mortgage brokers (s 5(1)(d)). Broker conduct will therefore not be a subject within this inquiry.

Other affected parties

• Existing and new home loan customers: the instrument directs the Commission to consider differences in prices charged to existing versus new customers and impediments to customers refinancing (s 6(a)(ii), s 6(b)). Customers may be the subject of data requests or consumer behaviour analysis.
• The Treasurer: the Commission must report to the Treasurer with an interim report by 30 March 2020 and a final report by no later than 30 November 2020 (s 7(b), s 8). The Treasurer will receive the Commission’s findings and any policy advice that follows.
• Organisations with large market share: the direction to have special regard to those with the largest shares of outstanding home loans by market value (s 7(a)) means institutions with substantial loan books will bear concentrated regulatory attention.
• Entities that compile or publish price information: because the Commission is directed to consider “the availability to the public of information about prices actually being charged, or paid, for home loans” (s 6(c)(ii)), parties involved in price publication, comparison services, and data aggregation may be examined or relied upon in analysis.

Indirect effects and procedural expectations

• The instrument does not itself compel information disclosure nor set reporting formats. However, by specifying the precise categories of pricing data and timing to be examined (prices since 1 January 2019, advertised vs actual rates, timing of announcements, etc.), the instrument signals to suppliers the kinds of records, timing logs, pricing communications and product terms that are likely to be relevant. Parties in scope should therefore expect to assemble contemporaneous documentation on published rates, contractual rates, internal decisions about rate changes, and product features that may impede switching.

Who is insulated

• The inquiry cannot be held “in relation to the supply of goods and services by a particular person or persons” (s 5(3)). This constraint insulates any named individual firm or small group of named firms from being the sole or direct named subject of the inquiry; practitioners should note this procedural bar when advising clients about the inquiry’s likely form.

In short, the instrument principally affects ADIs and credit licensees supplying secured residential mortgages, and those with large market shares will draw particular focus. It excludes State/Territory supplied lending, exempt supplies, APRA, ASIC and mortgage brokers from inquiry consideration. Customers, data publishers and market participants with relevant pricing or product information will be consequentially affected insofar as the Commission seeks to examine prices, advertised versus actual rates, incumbent/new customer differentials, and switching impediments.

This instrument establishes duties for the Commission and identifies boundaries that create procedural constraints; it does not create new private rights or civil obligations enforceable against suppliers directly. The main duties and constraints are:

Duties imposed on the Commission

• To hold an inquiry into the market for the supply of home loans under subsection 95H(1) of the Competition and Consumer Act 2010 (s 5(1)). The instrument invokes the relevant statutory provisions in the Act as the legal basis for the Commission’s task.
• To limit the inquiry so it does not extend to specified matters: supplies by State or Territory authorities, exempt supplies, conduct of APRA, conduct of ASIC, and conduct of mortgage brokers (s 5(1)(a)-(d)). This creates a duty to exclude those matters from the inquiry’s scope.
• To confine the inquiry, for the purposes of subsection 95J(1), to the types of goods and services described in s 5(2): home loans supplied by ADIs, by Australian credit licensees, and by persons covered by those descriptions but for an exemption (s 5(2)).
• To avoid holding the inquiry “in relation to the supply of goods and services by a particular person or persons” under subsection 95J(2) (s 5(3)). That is a duty to refrain from targeted inquiries into named suppliers.
• To take into consideration a specified set of matters while holding the inquiry, as listed in s 6: prices charged since 1 January 2019 with specified subcomponents, impediments to switching including product features and bundling, and other impediments including consumer behaviour and public availability of pricing information (s 6(a)-(c)). These are mandatory analytical headings for the Commission’s work.
• To “have particular regard” to activities of those with the largest shares of outstanding home loans by market value (s 7(a)). This is a directive to prioritise analysis of large-market participants.
• To deliver an interim report to the Treasurer by 30 March 2020 and to complete the inquiry and deliver a final report by no later than 30 November 2020 (s 7(b), s 8). These are time‑bound obligations.

Rights and constraints for other parties

• The instrument does not confer statutory rights on lenders, customers, brokers or other market participants. It also does not explicitly provide procedural rights such as rights to appear, to be heard, or to access draft findings; any such procedures will depend on the Commission’s own investigation process and the statutory framework in the Act (which is referenced but not restated here).
• The exclusion in s 5(3) that the inquiry is not to be held “in relation to the supply of goods and services by a particular person or persons” constrains the Commission’s power to focus on named parties. That constraint can be relied upon by potential subjects to resist characterising the inquiry as a probe into a single firm, though practitioners should note it does not prevent the Commission from examining firms generally in the market or from scrutinising the conduct of large players identified under s 7(a).

Limits on enforcement power in the instrument

• The instrument does not itself create enforcement powers, penalties or remedies against suppliers. Its function is investigatory and directional; any downstream enforcement, policy intervention, or regulatory change would have to be carried out under other statutory powers or policy processes. The instrument’s duties are therefore about inquiry content and timing rather than sanctions.

Implications for compliance activity

• Because the Commission must consider concrete price measures and timing (prices since 1 January 2019; advertised vs actual rates; timing of announcements and implementation following RBA cash rate changes), firms in scope have a pragmatic interest in assembling contemporaneous records, demonstrating reasons for pricing decisions, documenting product features and bundling, and preserving evidence about customer pricing differentials. While the instrument does not compel production itself, the Commission’s inquiry powers under the Act (cited in the instrument) may be the channel by which the Commission obtains such material.

In summary, the instrument places a set of mandatory duties on the Commission about what to study and when to report, prescribes boundaries on what must not be examined, and leaves procedural and enforcement mechanisms to the statutory framework referenced rather than to the instrument itself. The principal “rights” available to third parties are derived from the procedural constraints in the instrument (for example the non-targeting rule in s 5(3)), with other procedural protections dependent on the Act and Commission practice.

The instrument itself contains no penalty provisions and does not create new civil or criminal offences. Its legal effect is investigatory and directional; enforcement in this instrument consists of obligations on the Commission to conduct and report an inquiry within specified boundaries and timeframes.

No sanctions or enforcement mechanisms in the instrument

• The text contains no clauses that impose monetary penalties, criminal sanctions, injunction powers, or administrative fines on suppliers, consumers, or other third parties. It directs the Commission to hold an inquiry and specifies what the Commission must consider and when it must report (s 5-8), but does not attach enforcement consequences to market participants within the instrument itself.

Relationship to statutory powers in the Act

• The instrument is made under the Competition and Consumer Act 2010 (s 3) and invokes subsections 95H(1), 95J(1) and (2), 95J(6), and 95K(1) of the Act in its operative paragraphs (s 5(1), s 5(2), s 5(3), s 6, s 8). Those references indicate the Commission will be exercising the Act’s statutory inquiry powers when it conducts the inquiry. Any statutory enforcement powers that the Commission may use,such as powers to require information, compel attendance, or take other investigatory steps,derive from the Act rather than from this instrument. The instrument does not restate those powers or the consequences of non‑compliance with them.

Practical enforcement consequences through reporting

• The instrument imposes deadlines for reporting to the Treasurer: an interim report by 30 March 2020 (s 7(b)) and completion with a final report by no later than 30 November 2020 (s 8). Non‑performance of those duties would be a failure to comply with the direction under the Act; the Act’s own mechanisms would govern remedy or consequence. The instrument itself does not describe remedial steps in the event of non‑compliance by the Commission.

Downstream regulatory or policy consequences outside the instrument

• While the instrument does not itself impose penalties, the findings and recommendations of the Commission’s inquiry could lead to subsequent enforcement action, regulatory change, or other interventions by the Government or regulators. Those downstream consequences would be effected under the relevant statutory regimes (for example, competition, consumer protection, prudential or credit regulation) and are not created by this instrument. The instrument confines the Commission’s task to inquiry and reporting.

Implications for parties responding to the inquiry

• The lack of penalties in the instrument does not mean that cooperation is without consequence. Since the Commission’s inquiry will examine advertised versus actual rates, customer price differentials, timing of rate changes, and impediments to switching (s 6), the content and credibility of information provided to the Commission will likely influence the Commission’s findings and recommendations. Those findings could, in turn, inform enforcement action by other regulators or policy responses by the Government, but any such action would rely on the separate statutory powers of the relevant body.

In short, this instrument establishes an inquiry mandate and reporting timetable; it does not itself impose penalties or enforcement measures upon lenders or other participants. Any compelled information‑gathering, sanctions, or remedial measures would rely on the statutory powers referenced (the Competition and Consumer Act 2010 and other relevant statutes) rather than on this direction’s text.

The instrument is tightly cross-referenced to existing statutory frameworks. Its meaning, scope, and practical operation depend substantially on definitions and powers located in other Acts; the instrument neither restates nor amends those provisions.

Dependence on the Competition and Consumer Act 2010

• The instrument is made under the Competition and Consumer Act 2010 (s 3) and repeatedly invokes particular subsections of that Act as the legal basis for the Commission’s inquiry obligations (s 5(1) references subsection 95H(1); s 5(2) references subsection 95J(1) and s 5(3) references subsection 95J(2); s 6 references subsection 95J(6); s 8 references subsection 95K(1)). The instrument therefore operates within the procedural and substantive confines of the Act. Understanding the Commission’s powers to gather information, its procedural obligations, and the legal effect of its reports requires consulting the Act itself for the powers and processes the instrument relies upon.

Imported definitions and interpretative links

• Several key terms are defined by reference to other Acts rather than within this instrument: “authorised deposit‑taking institution” from the Banking Act 1959; “Australian credit licensee” from the National Consumer Credit Protection Act 2009; “residential premises” as in the GST Act (A New Tax System (Goods and Services Tax) Act 1999); and a range of terms taken from subsection 95A(1) of the Act (including “exempt supply”, “goods”, “inquiry”, “price”, “services”, “State or Territory authority”, and “supply”) (s 4). The instrument’s scope therefore depends on the definitions and exemptions in those statutes. For example, whether a particular loan falls within “home loan” requires checking the GST Act definition of “residential premises”; whether a supplier is an ADI requires checking the Banking Act; whether a supply is an “exempt supply” requires checking s 95A(1) of the Act.

Interaction with prudential and credit regulation

• The instrument explicitly excludes the conduct of the Australian Prudential Regulation Authority and the Australian Securities and Investments Commission from the inquiry (s 5(1)(c)), noting these matters fall within scope of other inquiries. That creates a jurisdictional demarcation: the Commission’s inquiry is not meant to duplicate or intrude on matters of prudential supervision or certain regulatory conducts that APRA and ASIC handle. Practically, that may limit the Commission’s ability to examine certain regulatory drivers of pricing that are properly within APRA or ASIC’s remit.

Overlap with mortgage-broker regulation

• The conduct of mortgage brokers is similarly excluded from the inquiry’s scope (s 5(1)(d)). Where switching impediments arise through the distribution channel (for example, broker incentives), the instrument directs the Commission not to examine broker conduct; those matters are, according to the instrument, addressed elsewhere. In practice, the Commission’s inquiry must therefore distinguish between product or supplier practices that impede switching and broker conduct that may be relevant but is outside the inquiry’s compass.

Interplay with exemptions under other acts

• Section 5(2)(c) expressly includes within scope persons who would be covered by s 5(2)(a) or (b) if not for an exemption under the Banking Act 1959 or the National Consumer Credit Protection Act 2009. That language recognizes that statutory exemptions under those Acts do not automatically exclude a supplier from this inquiry’s analytic frame. The effect is to bring into the Commission’s purview suppliers functionally similar to ADIs or credit licensees even where those suppliers benefit from exemptions under other statutory regimes.

Implications for legal advice and analysis

• Determining the exact universe of suppliers and supplies requires cross‑checking the definitions and exemptions in the Banking Act 1959, the National Consumer Credit Protection Act 2009, the GST Act, and subsection 95A(1) of the Competition and Consumer Act 2010. Legal advisers must therefore treat this instrument as a directional overlay that identifies subject matter, while the legal contours of who is in or out are found in the other statutes referenced.

Reporting to the Treasurer and governmental coordination

• The requirement to report to the Treasurer (s 7(b), s 8) situates the inquiry within executive decision-making processes. The Commission’s findings (framed by the instrument’s directed matters) will therefore interact with other policies and regulatory responses governed by other statutes and decision-makers.

In sum, the instrument does not operate in isolation. It depends on definitions, exemptions, investigatory powers and regulatory divisions contained in the Competition and Consumer Act 2010, the Banking Act 1959, the National Consumer Credit Protection Act 2009, and the GST Act. Practitioners must consult those Acts to determine precise scope, powers to compel information, and any downstream regulatory consequences; the instrument defines the inquiry’s analytic tasks and limits but not the detailed legal mechanics of enforcement or rights.

The instrument text supplied contains no amendment history entries, transitional provisions, or schedules indicating modifications, revocations or prior versions. The instrument identifies itself as the Competition and Consumer (Price Inquiry,Home Loans) Direction 2019 (s 1) and is made under the Competition and Consumer Act 2010 (s 3). Beyond that, the instrument includes no subsequent amendments, notes of replacement, expiry clauses, or references to prior directions.

Implications of the absence of recorded amendments

• The lack of documented amendment history in the instrument means the operative text as provided should be read as the full direction that the Commission is required to follow. There are no listed modifications that change the inquiry’s scope, definitions, deadlines, or exclusions within this instrument’s text.
• Because the instrument draws on definitions and powers located in other statutes (for example, definitions from the Banking Act 1959 and the National Consumer Credit Protection Act 2009, and investigatory provisions of the Competition and Consumer Act 2010), any changes to those external statutes after the instrument’s making could affect the instrument’s practical application. The instrument explicitly notes that expressions have the same meaning in this instrument as in the Competition and Consumer Act 2010 “as in force from time to time” (s 4 note). That cross-reference implies that amendments to the Act, or relevant definitions in the other named statutes, will alter interpretative outcomes for the direction without requiring amendment to the direction itself.

Practical advice

• Users relying on the instrument should verify whether any later instrument has varied, superseded, or revoked this direction, and should check the current versions of the referenced statutes for any definitional changes that alter the instrument’s scope. The instrument itself does not contain a sunset clause or express revocation; the report deadlines (interim report by 30 March 2020 and final by 30 November 2020) indicate the operational timeframe for the inquiry set by the direction (s 7(b), s 8).

Absence of recorded amendments means limited direct guidance

• Because there is no in-text amendment history, there is no statutory “paper trail” within this instrument to explain any subsequent policy refinements or scope changes. Any later policy developments, follow-up directions to the Commission, or legislative amendments that bear on home‑loan pricing must be sought in other instruments or Acts. Practitioners should therefore treat this instrument as a snapshot directive and consult contemporaneous records, the Commission’s published materials, and any subsequent directions or legislation for updates.

In short, this instrument provides no internal amendment history; its application and continued relevance depend on the state of the statutes it references and any later directions or legislative change recorded elsewhere.

The instrument text as provided contains no record of litigation, judicial consideration, challenge, or case law interpreting this specific Direction. There are no references in the instrument to judicial review, litigation outcomes, or disputes about the direction’s validity or application.

Consequences of the absence of litigation

• The absence of litigation citations in the instrument means there is no authoritative judicial interpretation in the instrument itself to clarify ambiguous provisions, nor is there a record in the instrument of legal challenges that might have altered its effect. Any legal questions about the direction,its scope, procedural adequacy, or compliance with statutory limits,would need to be litigated or otherwise resolved before the courts; no such record appears in the instrument supplied.

Practical implications for advisers

• Practitioners seeking to advise clients on vulnerabilities or likely legal contests must take account that, as of the instrument’s text, no judicial guidance exists within the instrument. Interpretation of cross-referenced statutory provisions (for example, the scope of “exempt supply” in s 95A(1) of the Competition and Consumer Act 2010, or the powers conferred by subsections 95H, 95J and 95K of the Act) will require legal research in the relevant statutes and case law, none of which is reproduced in this instrument.
• If a supplier or other party wished to challenge the Commission’s exercise of powers in the inquiry (for example, on grounds the Commission exceeded the limits of the direction or statutory powers), such a challenge would have to be framed against the Act and the Commission’s specific procedural steps. Again, no litigation history is found in the instrument to guide that analysis.

What to check when considering litigation risk

• Confirm whether any judicial review proceedings were launched after the instrument was made, and whether courts have considered the Commission’s inquiries under the referenced Act. Because the instrument itself contains no litigation history, secondary materials, the Commission’s own public documents, or court databases must be consulted to identify any post-instrument litigation or judicial commentary.
• Be aware that disputes could arise about the interpretation of “home loan”, the scope of “exempt supply”, the meaning of being “covered” despite statutory exemptions (s 5(2)(c)), or the proper construction of the non-targeting limitation in s 5(3). None of those interpretative issues is decided in the instrument text; any judicial answers will be found in external sources.

In summary, the instrument contains no litigation history. Legal advisers should therefore treat the direction as unlitigated in the provided text and conduct targeted research into case law applying the Competition and Consumer Act 2010 and the related statutes cited for any judicial developments relevant to practice.

This section flags specific points in the instrument that commonly produce uncertainty, unintended narrowing or broadening of scope, or practical surprises. Each “gotcha” arises from language in the direction itself and the direction’s reliance on external statutory definitions.

1. Scope tied to external definitions

• The instrument imports critical definitions from other Acts (s 4). That means the inquiry’s scope can shift as those external definitions are interpreted or amended. Practitioners often assume “home loan” equals typical residential mortgages; here “home loan” is specifically a loan secured by a mortgage over residential premises, with “residential premises” drawn from the GST Act (s 4). If a lending product is secured by a different asset or is structured as a hybrid product, its classification requires checking those external definitions. Don’t assume all retail mortgage-like products are in scope; verify using the referenced Acts.

2. Exemption carve-in (s 5(2)(c))

• Section 5(2)(c) brings into the inquiry people who would be covered by the ADI or credit licensee descriptions except for an exemption under the Banking Act 1959 or National Consumer Credit Protection Act 2009. That catches entities that have statutory exemptions. It is a double-edged provision: a supplier may rely on an exemption for prudential or licensing reasons yet still fall within the Commission’s inquiry by operation of this clause. Check the precise wording and status of any purported exemption before assuming out-of-scope.

3. “Not in relation to a particular person or persons” (s 5(3))

• The instrument forbids the Commission from holding the inquiry “in relation to the supply of goods and services by a particular person or persons.” That prevents a named‑target inquiry, but it does not prevent intense scrutiny of the market conduct of major players collectively. Firms may be surprised that while they cannot be the sole named subject, their conduct can still be analysed in detail as part of the market-wide inquiry,especially if they are among the largest by market value (s 7(a)).

4. Exclusions of APRA, ASIC and mortgage brokers (s 5(1)(c), (d))

• The direction excludes the conduct of APRA and ASIC and excludes mortgage broker conduct. Where switching impediments involve broker remuneration or prudential constraints, the Commission is directed not to investigate broker conduct or the conduct of APRA/ASIC, so its findings may skirt or be unable to address distribution-channel causes of market outcomes. Parties relying on this exclusion should verify whether the Commission nevertheless examines related supplier practices outside broker conduct per se.

5. Temporal constraint on prices (s 6(a))

• The Commission is directed to examine prices charged “since 1 January 2019” (s 6(a)). That fixed start date sets the analytic period. Parties should not expect the inquiry to give sustained attention to older pricing trajectories unless they are directly relevant to that period. This may be important for firms trying to explain long-term pricing strategies; evidence predating 1 January 2019 may be less central.

6. Focus on advertised vs actual rates and incumbent/new customer differential (s 6(a)(i)-(ii))

• The instrument emphasises comparisons between advertised rates and rates actually charged, and between incumbent and new customer pricing. Firms that advertise headline rates but have widespread discounted or bespoke pricing will face scrutiny. Lenders should carefully track advertised materials, product terms, and executed contract rates as discrepancies between them are explicitly flagged for consideration.

7. Pricing transmission analysis requires funding-cost and timing evidence (s 6(a)(iii)(A)-(B))

• The Commission must examine whether supplier price changes following RBA cash rate moves were due to suppliers’ access to, and costs of, finance and must consider timing of announcements and implementation (s 6(a)(iii)). That points to requests for data on funding costs and internal decision timelines. Lenders may need contemporaneous treasury records and board minutes to explain transmission.

8. Product features and bundling as switching impediments (s 6(b))

• The instrument explicitly directs examination of product features and bundling as impediments to switching (s 6(b)). Products that mix home loans with other services, or that create complexity in transferring, will attract attention. Lenders that offer bundled services should be ready to explain contract mechanics and migration pathways.

9. Consumer behaviour and information availability (s 6(c))

• The Commission must also study consumer decision-making biases and public availability of information on actual prices (s 6(c)(i)-(ii)). This elevates market transparency and behavioural explanations alongside supplier practices. Parties that rely on consumer inertia as a business model may find that factor analysed as part of the inquiry.

10. Reporting deadlines compress time for response (s 7(b), s 8)

• The interim report deadline (30 March 2020) and final report deadline (no later than 30 November 2020) mean rapid evidence collection and response. Parties should not assume prolonged consultation windows; the statutory timetable is tight.

11. No express procedural protections or rights in the instrument

• The instrument does not set out rights to representation, confidentiality protections, or access to draft findings. Those procedural matters rest with the Commission’s practices and the Act. Entities should not assume procedural guarantees exist beyond what the Commission provides.

12. The instrument does not itself create sanctions

• Parties sometimes conflate inquiry findings with immediate enforcement. This direction creates no penalties. However, its findings could precipitate later enforcement or regulatory change under other laws. Do not treat the instrument as the source of enforcement authority.

These “gotchas” derive directly from the instrument’s language and its reliance on definitions and powers in other statutes. Advisers should verify definitions and exemptions in the referenced Acts, preserve relevant contemporaneous records from 1 January 2019 onwards, and be prepared to explain advertised versus contract rates, internal decision-making about rate changes, funding-cost impacts, product features that affect switching, and the availability of price information to consumers.

This section translates the direction’s requirements into a pragmatic checklist for entities in scope: authorised deposit‑taking institutions, Australian credit licensees, and persons captured by s 5(2)(c). The instrument does not itself impose information production obligations, but the Commission will be examining specified matters; prudent compliance prepares records and narratives that align with the inquiry’s mandated lines of inquiry (s 6, s 7, s 8).

Immediate documentary and data priorities

• Price records since 1 January 2019: assemble datasets showing advertised rates, published product rates (including marketing materials), contractually applied interest rates, and actual rates paid by customers over the period from 1 January 2019 onwards (s 6(a)). Ensure records link advertised rates to specific products and dates.
• Customer segmentation and pricing differentials: produce analyses that distinguish rates and fees charged to existing customers versus new customers, with supporting transaction-level data to show distributions, movements over time, and the mechanics by which different prices were offered or applied (s 6(a)(ii)).
• Timing and decision-making records for rate changes: compile contemporaneous documents that explain pricing responses to changes in the RBA cash rate,board minutes, treasury desk notes, implementation plans, customer notification schedules, and records of the date of announcement and effective date of any rate changes (s 6(a)(iii)(B)). Link funding sources and cost of funds evidence to show whether price changes were influenced by access to finance and funding costs (s 6(a)(iii)(A)).

Product, contract and switching documentation

• Product feature manuals and terms and conditions: gather product documentation showing features that may impede switching,early repayment penalties, bundled product terms, portability provisions, account linkage requirements, and any technical steps required to transfer loans (s 6(b)).
• Bundling and service arrangements: prepare explanatory material on how bundled products operate, the interdependencies between packaged services, and whether unbundling or migration options exist for customers seeking to refinance (s 6(b)).

Customer communications and public information

• Advertising and disclosure materials: preserve copies of all advertising, published rate tables, brochures, comparison materials and online disclosures that were live since 1 January 2019 (s 6(a)(i), s 6(c)(ii)). Be ready to explain differences between marketing language and contractual rates.
• Public availability of price information: document what price information is publicly available, how it is published, and what steps the institution has taken to ensure clarity about the rates actually charged (s 6(c)(ii)). If third-party aggregators publish data about the institution, record interactions and corrections where applicable.

Consumer behaviour and internal analysis

• Evidence of consumer engagement strategies: assemble materials that reflect how consumers make choices between incumbency and switching,customer surveys, market research, opt-out/opt-in communications, and analytics regarding retention and take-up that bear on behavioural explanations identified in s 6(c)(i).
• Customer support and migration processes: document the operational processes for refinancing and switching, including average timelines, approval processes, and points where customers experience friction.

Governance and compliance narratives

• Rationale for pricing decisions: prepare narrative explanations tied to documentary evidence to show why particular pricing decisions were made, how they relate to funding costs or market strategy, and who authorised them (s 6(a)(iii)(A)-(B)).
• Materials addressing the non-targeting constraint: if advising clients concerned about being singled out, remind them that the inquiry cannot be held “in relation to the supply of goods and services by a particular person or persons” (s 5(3)), but that major market players will be considered under s 7(a).

Engagement with the Commission and the Treasurer’s reporting timetable

• Prepare for tight deadlines: the Commission must deliver an interim report to the Treasurer by 30 March 2020 and complete the inquiry with a final report by no later than 30 November 2020 (s 7(b), s 8). Organise document preservation, evidence collation and internal approvals to respond promptly to Commission outreach or information requests.
• Coordinate with legal and communications teams: because the instrument emphasises advertised versus actual rates and public information availability (s 6(a)(i), s 6(c)(ii)), align legal analysis of disclosure obligations with communications that may be published or corrected.

Practical internal controls to implement now

• Preservation orders and legal holds: issue immediate data preservation instructions covering advertising, marketing, product terms, pricing databases, customer records, treasury documents and board minutes from 1 January 2019 onwards.
• Data mapping: map where relevant pricing, customer and product data reside and who is responsible for extracts. Ensure audit trails show when advertised rates were published and when contract rates were applied.
• Cross-functional evidence collection: involve treasury, product, marketing, legal, compliance and customer‑service units in assembling responses so technical, commercial and consumer-facing perspectives are included.

Confidentiality and engagement strategy

• Anticipate confidentiality concerns: the instrument does not set out confidentiality protections; consider early engagement with the Commission on confidentiality frameworks for sensitive commercial information.
• Strategic engagement: consider providing contextual material proactively,summary narratives and supporting documents that explain pricing decisions and product design, while preserving rights to withhold or contest disclosure under statutory processes provided in the Act.

In short, compliance should not be passive. Entities in scope should prepare contemporaneous price and product records from 1 January 2019, document customer pricing differentials, supply funding-cost and timing evidence for pricing changes, explain product features and bundling that affect switching, and be ready to explain public disclosure practices. Time is constrained by the reporting deadlines in s 7(b) and s 8; readiness and coordinated internal documentation will be essential to effective engagement with the Commission’s inquiry.