News & Insights

In February 2024, the designated complaints legislation was introduced into Federal Parliament, enabling certain bodies to make “designated complaints” to the Australian Competition and Consumer Commission (ACCC).

The concept of a designated complaints framework was rejected back in 2008 by the Productivity Commission, but revisited with support in 2017 and 2021.   It also featured as an Australian Labor Party election commitment in 2022.  Australia’s new designated complaints framework is a similar concept to the ‘super complaints’ framework already in operation in the UK.

The scheme is expected to commence for Australia from July 2024.

What’s the purpose?

The designated complaints function will sit within the ACCC.  Its main purpose is:

• to enable “designated” consumer and small business advocates to submit a complaint to the ACCC; and
• to require the ACCC to publicly respond within 90 days, making it clear what further action (if any) it intends to take.

Designated complaints

“Designated complaints” will be complaints relating to significant or systemic market issues affecting consumers or small businesses in Australia.

Designated complainants

Whilst anyone in Australia can submit a complaint to the ACCC, only a “designated complainant” approved by the Minister may make a “designated complaint”.

Applications for approval to act as a “designated complainant” will be open for a period of at least 3 weeks, every 3 years.  In assessing applications, the ACCC will consider matters including:

• The applicant’s ability to make high quality designated complaints;
• Any conflicts of interest with its commercial activities;
• The applicant’s willingness to cooperate with the ACCC;
• Whether the applicant has previously been a designated complainant (including their previous conduct in doing so);
• Whether the applicant has an ongoing relationship with consumers or small businesses through regular contact and communication; and
• The applicant’s access to, or ability to obtain, timely, high quality and relevant data about consumer and small business issues.

At this time, only a maximum of 3 designated complainants will be approved, and each designated complainant can only make one designated complaint per year.

ACCC’s response

The ACCC will be required to publicly respond to the designated complaint within 90 days, making it clear what further action, if any, it intends to take.

Considerations for the ACCC will include:

• The nature of the market issue;
• The significance of the issue;
• The extent to which the issue is systemic;
• The nature and extent of any actual or potential harm to consumers or small businesses;
• Whether the assessment of harm changes if no action is taken;
• Cost to the ACCC;
• Whether action is likely to have broad public benefit;
• Whether the subject matter of the complaint is substantially similar to the subject matter of any other complaint lodged in the previous 2 years;
• Whether the subject matter of the complaint is part of a matter which is the subject of concurrent legal proceedings;
• Whether the subject matter of the complaint is part of a matter which is subject to ongoing enquiry, investigation or review; and
• Any other relevant matter.

The ACCC will not be required to take action if it will constrain the ACCC’s activities.   The ACCC also does not have to publish a response if it would harm an ongoing, confidential investigation that has not been made public, or if it would contravene a law or court order.

How can MK help?

If you have any questions regarding the upcoming designated complaints framework, please contact our MK Trade team

The information contained in this article is general in nature and cannot be relied on as legal advice nor does it create an engagement. Please contact one of our lawyers listed above for advice about your specific situation.