Any official crackdown on price-gouging of rapid antigen tests in Australia is unlikely, despite government suggestions it will get the consumer watchdog involved amid reports the kits have doubled in price as stock disappears from shelves.
The Australian Competition and Consumer Commission has previously noted “price gouging is generally not illegal”, meaning its ability to respond is likely to be limited unless specific circumstances are involved.
Speaking at a press conference on Wednesday in which he announced national cabinet would convene on Thursday, the prime minister, Scott Morrison, pushed back against calls from unions and business groups for the commonwealth to source and distribute rapid tests for free to people across the nation.
He said testing was the states’ “job” and he was “glad they’re doing it”.
With some Australians waiting several hours to get a free PCR test and several days to get the result, demand for rapid antigen tests has grown dramatically and prices have risen in turn.
Some consumers claimed one retailer appeared to be selling the same five-test kit online for $90 on Wednesday, up from about $45 last week.
Asked if was there anything to stop retailers gouging prices, Morrison appeared to suggest the consumer watchdog could address the issue.
He said that was “something I know the treasurer would be pursuing with the ACCC”.
“That’s their job,” Morrison said. “In the same way they do that across many other areas of critical supplies. And anyone who is doing that, they should be reporting that to the ACCC. And I would encourage them to do that.
“And that’s something I know the treasurer would be moving on with the chair of the ACCC if someone was seeking to do something of that nature.”
A spokesperson for the ACCC said the body could “publicly call out” suppliers caught exploiting the shortage.
“The ACCC will investigate any evidence of price collusion and take appropriate action,” the spokesperson said.
“The ACCC can publicly call out any suppliers which seem to be exploiting the shortage of rapid antigen tests.
“Under the Competition and Consumer Act excessive pricing may, in certain circumstances, constitute unconscionable conduct. Any such case would need to be ultimately decided by a court.”
At the start of the pandemic, amid price rises due to product shortages the watchdog also noted, however, that under Australian law “price gouging is generally not illegal”.
Some manufacturers warned in October, a month before rapid tests became available in chemists, that Australia was likely to face price hikes due to a supply crunch.
The Pharmacy Guild also said this week that limited supply and supply chain costs could lead to higher prices for consumers.
Amid the consumer complaints of increased prices, some observers pointed to an obscure New South Wales law, repealed in 2019, that a former state fair trading commissioner has said could have prevented price gouging during the pandemic. The state government has previously disputed the claim.
Meanwhile, Victoria became the second state pledging to distribute free rapid antigen tests. The health minister, Martin Foley, announced on Wednesday had bought 34m tests and hoped to start handing them out next week, joining NSW which has now ordered 50m and will distribute them from the end of January.
Foley said Victoria would buy and provide free tests because the issue had “fallen to the states”. “We would much prefer a national approach … failing that, as per usual the states have had to step up.”
Morrison said in response that the federal government’s responsibility on rapid antigen testing was limited to certain settings, such as in residential aged care.
But he said the government would commit another $375m to buy further rapid tests for the national stockpile, which might be drawn on to meet gaps at the state level.
Morrison also indicated the federal government was “looking at ways” pensioners might receive concessional access to rapid tests at pharmacies, though he did not give further details.
Social service and disability groups have become increasingly concerned that the cost of rapid antigen tests were prohibitive for those on low incomes, including people living with disabilities and elderly people.
A pack of five tests would represent 15% of the weekly income of a person on the base rate of the jobseeker payment.
President of peak body People With Disability Australia, Samantha Connor, said the federal government should step in to provide rapid tests.
“The federal government must urgently provide free rapid antigen testing for people with disability, especially those at risk of severe disease and those with multiple support workers,” Connor said.
“Tests and masks should be funded free of charge, have no impact on existing disability funding and available through community pick up points, via mail and from pharmacies.”
Connor noted half of all people with disability in Australia lived in poverty. “For many people with disability who have large teams of support workers, it is not feasible to pay $15 a test, especially in a highly casualised workforce,” she said.
Connor said there was also mass confusion about whether national disability insurance scheme participants could use their funding to buy rapid antigen tests.
A spokesperson for the national disability insurance agency said people in NDIS-funded supported independent living accommodation (SIL) and their providers could claim $12.50 per rapid test. There are about 25,000 SIL participants, but nearly 500,000 people in the NDIS.
Some people with disability have also been forced to turn to charities and other mutual aid organisations.
The Disability Justice Network, a small grassroots group led by disabled people, said it had provided $2,000 to help people pay for rapid tests since placing a call out online a week and a half ago.
“We’ve been getting requests from all over the country,” said Georgia, a Disability Justice Network member who did not want her surname used. “The standard thing we’re doing is transferring people directly $50, which we’ve found is enough to buy a five pack of tests.
Some had bought tests and now couldn’t afford groceries, she said, while others could not physically stand in a line for hours for a PCR test, she said.
“It’s just a new sudden cost, the prices are going up,” Georgia said. “The DSP or jobseeker payment is just so inadequate.”