How to Set Up a Competition Compliance Program in Australia

Understanding how to set up a competition compliance program in Australia is essential for any business that interacts with competitors, suppliers or customers in the Australian market. The Competition and Consumer Act 2010 (Cth) prohibits cartel conduct, anti-competitive agreements and misuse of market power, and the Australian Competition and Consumer Commission (ACCC) has made clear that a credible, well-evidenced compliance program is a factor it considers when deciding whether to pursue enforcement action and what remedy to seek. This guide provides the complete step-by-step procedure for directors, in-house counsel and compliance officers, covering every phase from initial risk assessment through to building an evidence pack ready for regulatory scrutiny.

Whether you are a multinational operating through an Australian subsidiary or an SME facing competition risk for the first time, the process below gives you a practical, sequenced roadmap with timelines, required documents, indicative costs and the pitfalls that most commonly undermine otherwise well-intentioned programs.

Overview of the Process and Who It Applies To

A competition compliance program is a documented, ongoing system of policies, training, monitoring and enforcement designed to prevent breaches of the competition provisions in the Competition and Consumer Act 2010, principally Part IV, which covers cartel conduct (s 45AD–45AO), anti-competitive agreements (s 45), concerted practices (s 45), and misuse of market power (s 46). The ACCC’s published compliance and enforcement guidance confirms that the existence and quality of a compliance program is relevant to its assessment of the appropriate enforcement response when a breach is detected.

Critically, a compliance program does not confer immunity. It does not prevent prosecution, and a “paper-only” policy carries no weight. What a competition compliance program in Australia does deliver, when properly implemented and evidenced, is a basis for the ACCC and courts to treat the contravention as less culpable, which can reduce penalties and shape the enforcement pathway. The OECD’s 2021 research on competition compliance programmes reinforces that agencies worldwide increasingly expect documented, active governance, not just a policy document filed and forgotten.

This process applies to every entity exposed to competition risk: corporations, partnerships, industry associations, joint ventures, distributors, franchisors and government trading enterprises. Directors bear personal exposure under the accessorial liability provisions of the Act, so board-level engagement is not optional, it is a compliance program requirement from day one.

Eligibility and Prerequisites for a Competition Compliance Program in Australia

Who must sign off

Board or CEO sign-off is the foundational prerequisite. The ACCC’s guidance and the International Competition Network’s 2022 Report on Competition Compliance both emphasise that visible commitment from the highest level of management is a hallmark of credible programs. A compliance program launched without board authorisation, recorded in minutes, will lack evidentiary weight in any enforcement proceeding.

Baseline prerequisites

Before commencing the steps below, ensure the following are in place:

• Nominated compliance owner. A senior person (General Counsel, Company Secretary or dedicated Compliance Officer) with authority and a reporting line to the board.
• Allocated budget. Even a modest initial budget signals genuine commitment, the costs table below provides indicative ranges.
• Access to competition law expertise. Either in-house counsel with competition law experience or a panel arrangement with external competition counsel.
• Risk segmentation. A preliminary view of which business activities sit in high, medium or low competition risk categories (e.g., tendering, pricing, competitor interaction, industry association membership).

When to include external counsel

External competition counsel should be engaged at the outset where the business operates in concentrated markets, participates in joint ventures or industry bodies, or has any history of competition inquiries. For lower-risk SMEs, external counsel can review a completed draft program rather than building it from scratch, reducing costs while preserving rigour.

Step-by-Step Procedure: How to Set Up a Competition Compliance Program

The following seven steps represent the core implementation sequence. Each step identifies the responsible role, the key outputs and the evidence you should retain. The summary table below the steps consolidates timelines for planning purposes.

Step 1, Conduct a scoped competition risk assessment

Map every activity where your business interacts with competitors, sets prices, allocates customers or territories, tenders for work, or participates in industry associations. For each activity, identify the specific provisions of Part IV of the Competition and Consumer Act 2010 that could be breached, for example, s 45AD (cartel conduct: price fixing, bid rigging, market sharing, output restriction) or s 46 (misuse of market power). Rank each risk by likelihood and consequence to produce a prioritised risk register.

Responsible: Compliance Officer and in-house counsel, reporting to the Board.
Outputs: Competition risk register (versioned, scored), risk heat map.
Evidence to retain: The register itself, board paper presenting results, minutes of board discussion.
Duration: 2–4 weeks.

Step 2, Draft written policies and procedures

Prepare a board-approved Competition Compliance Policy that sets out prohibited conduct in plain language, references the relevant statutory provisions, and describes the consequences of breach (including disciplinary action and personal criminal liability for cartel conduct). Supplement the policy with an operational procedures manual covering sales, procurement, pricing, tendering and competitor contact protocols. The ACCC’s published compliance and enforcement resources, together with publicly available example policies such as the Pilbara ISOCo Competition Compliance Policy, provide useful structural templates.

Responsible: In-house counsel and external competition counsel; HR for disciplinary clauses.
Outputs: Competition Compliance Policy, procedures manual, quick-reference guides, contract clause templates.
Evidence to retain: Board resolution approving the policy, version-controlled policy document, sign-off sheet.
Duration: 2–6 weeks.

Step 3, Design and deliver compliance training

Training must be role-based. Staff in sales, procurement, business development and executive leadership need detailed, scenario-based compliance training covering the cartel offences, concerted practices, misuse of market power and the company’s escalation procedures. Support staff may need awareness-level modules only. Build training into induction for new employees and schedule annual refreshers. The business.gov.au compliance program guidance recommends a mix of face-to-face workshops and eLearning modules to maximise reach.

Responsible: Compliance team, HR, external trainer (where appropriate).
Outputs: Training plan, attendance matrix, eLearning completion certificates.
Evidence to retain: LMS reports, signed attendance sheets with dates and topics, training materials.
Duration: 1–4 weeks for initial rollout; ongoing annual refreshers.

Step 4, Implement reporting and escalation channels

Establish clear, accessible channels for staff to report potential competition law issues, a compliance hotline, a dedicated email address, or a reporting tool within the company intranet. Define an escalation protocol: who receives reports, what triggers legal privilege, when the board must be notified, and how matters are referred to external counsel. Ensure whistleblower protections are communicated alongside the reporting mechanism.

Responsible: Compliance Officer, IT, Legal.
Outputs: Reporting flowchart, incident report form, escalation matrix.
Evidence to retain: Documentation of channels and protocols, communications to staff.
Duration: 1–2 weeks to set up; immediate use thereafter.

Step 5, Establish monitoring, audits and internal controls

A competition compliance program that is not monitored is, in the ACCC’s assessment framework, a program that does not exist in any meaningful sense. Implement a monitoring and audit plan that includes: periodic review of pricing and tender files, sampling of competitor-contact records, audit of industry association meeting attendance and minutes, and review of distribution and supply agreement clauses. The ICN’s 2022 Report on Competition Compliance recommends that monitoring regimes include both self-assessment questionnaires and independent audit sampling.

Responsible: Internal Audit or Compliance function; external auditor for independent sampling.
Outputs: Monitoring plan, quarterly compliance reports, audit reports.
Evidence to retain: All audit reports, samples tested, remedial actions documented.
Duration: Initial program within 1–3 months of launch; ongoing quarterly or annual cycles.

Step 6, Remediation, disciplinary measures and continuous improvement

When monitoring or reporting identifies a potential breach or near-miss, follow the documented investigation and disciplinary procedures. Record findings, outcomes and any changes made to policies or training as a result. Continuous improvement, updating the risk register after each incident, revising training scenarios, and closing control gaps, demonstrates to the ACCC that the program is a living system rather than a static document.

Responsible: HR, Legal, line managers.
Outputs: Investigation reports, disciplinary records, improvement log.
Evidence to retain: Complete investigation files, board updates on remedial actions.
Duration: As incidents arise; follow documented timelines for investigation and resolution.

Step 7, Compile the evidence pack for ACCC readiness

Assemble a single, indexed evidence pack that can be presented to the ACCC or to the court if enforcement action is taken. This pack should demonstrate: board governance and oversight (minutes, resolutions, budget approvals), policy currency (version history, annual reviews), training delivery and participation, monitoring activity and audit findings, incident investigations and remediation, and the operation of reporting channels. The purpose of this pack is to substantiate that the competition compliance program was genuine, active and effective, or at minimum, seriously pursued, at the time of any alleged contravention.

Responsible: Legal, Compliance, Company Secretary.
Outputs: Indexed evidence pack, privilege log for legal advice.
Evidence to retain: All underlying documents referenced in the pack.
Duration: 2–4 weeks to compile on request; maintain continuously so the pack is always current.

Summary timeline table

Required Documents and Information

The ACCC and courts assess a competition compliance program by looking at its documentary evidence: who approved it, when it was last reviewed, whether training was actually delivered, and whether incidents were investigated. The table below lists the core documents needed. When preparing these documents, pay attention to version control, sign-off dates, and currency, a policy last reviewed three years ago carries significantly less weight than one updated within the past twelve months.

Industry observers expect the ACCC to place increasing weight on contemporaneous documentation, records created at the time of the compliance activity, rather than assembled retrospectively. Ensure that every training session generates attendance records on the day, every board discussion is minuted in real time, and every incident triggers a logged report immediately.

Compliance Program Timeline and Key Deadlines

There is no statutory deadline by which a competition compliance program must be implemented, the obligation arises from the risk of contravention and the business’s exposure at any given time. The recommended timeline below assumes a company starting from a standing position and working towards a fully operational program.

For evidence retention, a minimum of seven years is recommended for high-risk matters, reflecting the six-year limitation period for civil pecuniary penalty proceedings under the Competition and Consumer Act 2010 plus a margin for investigation lead times. Criminal cartel proceedings have no statutory time limit, which reinforces the value of long-term record retention for the most serious risk categories.

Costs, Fees and Tax Considerations

The cost of establishing a competition compliance program varies significantly by company size, industry complexity and the extent to which external advisers are used. The table below provides indicative ranges for Australian SMEs and mid-market companies. All figures are approximate and should be validated against current market rates.

Most professional fees incurred in establishing and maintaining a competition compliance program, including legal advice, training provider fees and consulting costs, are generally tax-deductible as ordinary business expenses. Confirm the specific treatment with a qualified tax adviser, particularly where capital expenditure on software platforms may need to be depreciated rather than immediately deducted.

What Changes in 2026: Regulatory Emphasis and Policy Shifts

The core competition provisions of the Competition and Consumer Act 2010 remain stable entering 2026. The significant shift is one of regulatory emphasis and enforcement posture rather than legislative amendment. The ACCC’s published compliance and enforcement policy continues to list the existence and adequacy of a compliance program among the factors it weighs when determining enforcement responses. Early indications suggest this factor is receiving greater practical weight in 2025–26 enforcement decisions, consistent with the trajectory identified in the OECD’s 2021 research on competition compliance programmes, which found growing international consensus that well-designed programs should be rewarded, or at least recognised, in enforcement outcomes.

For directors, the practical implication is straightforward: the evidential bar is rising. The likely practical effect of the ACCC’s current posture is that regulators will scrutinise not just whether a policy exists, but whether it was actively implemented, monitored and updated. Board minutes, training attendance rates, audit findings and remediation records will carry more weight than a policy document alone. Companies that can demonstrate a mature, continuously improving competition compliance program will be better positioned to argue for reduced penalties or alternative enforcement outcomes.

Directors should also note the ongoing ACCC focus on cartel conduct, particularly in procurement and infrastructure sectors. Industry observers expect continued enforcement activity in these areas through 2026, making compliance training and monitoring for tendering and bidding conduct a priority for businesses in those sectors.

Common Pitfalls and How to Avoid Them

• Token or “shelf” policy. A policy that exists on paper but has never been communicated, trained or enforced carries no weight with the ACCC. Ensure every policy is actively implemented and reviewed annually, see Step 2 and Step 6 above.
• No board oversight or governance trail. Failing to record board approval, compliance reporting or budget allocation in minutes eliminates the strongest evidence of genuine commitment. Record compliance as a standing board agenda item.
• Generic training that ignores role-specific risk. Delivering the same training to all staff, regardless of their competition risk exposure, signals a box-ticking exercise. Design role-based modules as described in Step 3.
• No monitoring or audit function. A program without monitoring cannot detect breaches or demonstrate effectiveness. Implement the monitoring regime in Step 5 from the outset.
• Retrospective documentation. Assembling evidence after an ACCC inquiry has begun is far less credible than maintaining contemporaneous records. Build evidence creation into every step of the program, see the Required Documents table.
• Poorly drafted contract and procurement clauses. Standard-form contracts that contain exclusivity, resale price or territory clauses without competition law review can create liability. Ensure legal review of all template agreements as part of Step 2.
• Failure to act on identified risks. Identifying a competition risk in the risk register but taking no remedial action is worse than not identifying it at all, it demonstrates awareness without response. Close every identified risk with a documented action plan.

Sources

1. Australian Competition & Consumer Commission, Compliance & enforcement
2. business.gov.au, Compliance program guidance
3. Competition and Consumer Act 2010 (Federal Register of Legislation)
4. OECD, Competition Compliance Programmes (2021)
5. International Competition Network, Report on Competition Compliance (2022)
6. Lexology, Competition Compliance in Australia
7. Pilbara ISOCo, Example Competition Compliance Policy
8. Colin Biggers & Paisley, Competition & Consumer Protection
9. Safetrac, Competition and Consumer Laws Training