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Abstract:
A global movement towards a tougher stance against serious cartel conduct has seen several countries examine whether or not to criminalise this type of behaviour in recent years. This article argues that in both making the decision to criminalise and in implementing and enforcing a criminal cartel regime political support is essential. The article uses the Australian experience to make this point. It highlights delay, obfuscation and incoherence in the approach taken between 2003 and 2008 by the conservative Australian government to in deciding whether or not to criminalise serious cartel conduct to illustrate the consequences of weakness or ambivalence in political attitudes towards criminalisation.

antitrust, cartels, regulation, competition law, criminal law, convergence, globalisation

Abstract:
This article reviews the proposal to make serious cartel conduct a criminal offence in Australia. It analyses the extent to which the proposal captures the criminality of the conduct to which it will apply; in particular, its culpability, harmfulness and moral wrongfulness. Two key assumptions underpin this analysis. First, criminalisation makes the morality of serious cartel activity a relevant consideration in the design and application of the new law. Secondly, recognition of the moral dimension will enhance the prospects of the criminal regime securing the support necessary for its effective enforcement. It should also boost the regime's deterrence value by facilitating internalisation of relevant moral norms in the business community. The article concludes that there is still much work to be done in refining and even rethinking aspects of the new offence to ensure that it properly reflects the criminal nature of hard core cartels.

competition law, cartels, criminal offence, culpability, harmfulness, morality

Abstract:
In January 2008 the government released an Exposure Draft Bill and associated materials relating to the long-promised introduction of criminal penalties for serious cartel conduct in Australia. These materials reflect the work of the previous government and are not endorsed necessarily by the new government. If enacted in the form released for public comment, the legislation would be the most significant reform of cartel regulation, if not competition regulation generally, since the Trade Practices Act 1974 (Cth) was introduced. The Exposure Draft Bill proposes not only to criminalise certain forms of collusion (with consequences for immunity policy, investigatory powers, corporate liability, concurrent proceedings, mode of trials and many other aspects of enforcement) but also to broaden substantially, and controversially, the scope of the civil prohibitions against arrangements between competitors. These reforms would involve a major shift in competition policy and approach to regulatory enforcement and would have important practical consequences for the Australian business sector and its advisors, as well as for the agencies charged with administering the new regime and the judiciary. In addition to their national impact, the reforms would have international significance given the recent campaign of regulators world-wide to combat cartel activity with harsher penalties and greater co-operation between foreign agencies. The Exposure Draft Bill contains numerous amendments to the Trade Practices Act. The proposed amendments are far-reaching - they touch on every aspect of the law, policy and practice relating to cartel regulation in Australia. Many are complex. Several are highly controversial. Some are surprising because they go far beyond the proposals foreshadowed by the Report of the Dawson Committee in 2003 and the former Treasurer's Press Release in 2005. Few would dispute the merits of criminalising serious cartel conduct in principle. However, the specific means of implementation proposed in the Exposure Draft Materials raise many questions. This article outlines the key features of the Exposure Draft Materials and provides a basic explanation of the proposed amendments. It draws attention to the main legal and policy issues and highlights areas in which changes should be made or further work needs to be done. Finally, it identifies and makes recommendations regarding the options for the government and Treasury going forward. The authors urge the government to tackle at least the most serious issues identified in their analysis in order to make the new law work.

criminal law, cartels, regulation, competition law

Abstract:
The liability rules and sentencing system that will apply to individual offenders under Australia's new criminal cartel regime are among the more important areas of cartel criminalisation that warrant scrutiny. Their importance is underscored by the risk of exposure to jail and the extensive array of investigative powers available to enforcement agencies. This paper reviews in detail the liability and sentencing rules that will apply to individuals under the Australian regime. It concludes those rules are neither simple nor satisfactory. The overall picture is one of complexity, ill-designed or outdated legislative provisions, uncertainty about the ultimate form of the cartel criminalisation legislation, and indeterminacy as to the sentences that will be imposed on cartel offenders.

criminal law, cartel conduct, antitrust law

Abstract:
The statutory regime that will apply to cartel conduct in Australia from 2009 will be highly complex. Notwithstanding several revisions to the Bill during its gestation, many of the issues have not been addressed and, in general, there is considerable uncertainty as to how the new provisions will be interpreted and applied. The principal purpose of this paper is to review the requirement of a contract, arrangement or understanding, including the amendments proposed by the Australian Competition and Consumer Commission to the meaning of ‘understanding’ and the fault elements of the cartel offences. In relation to the former, the paper is highly critical of the ACCC proposals and suggests a more helpful approach is to map out the conceptual boundaries of an ‘understanding’ by comparing the approaches taken under US and EC law. In relation to the latter, the paper concludes that the main fault elements that apply - intention, knowledge and belief - raise numerous difficult issues, that the process of inference from circumstances will be problematic and that the challenges in formulating jury directions are formidable.

cartel conduct, antitrust law

Abstract:
Australia is set to become the latest in a growing number of countries to join the United States' "coalition of the willing" with respect to the criminalisation of serious cartel conduct. However, there are emerging questions as to whether criminalisation has sufficient support amongst key stakeholders in countries outside of the United States so as to guarantee its effective implementation. This article argues that for any new criminal regime to be successful in deterring serious cartel conduct such support, from the regulator, government, business sector, general public, judiciary and academia, will be vital. It considers the extent to which cartel criminalistion enjoys the support of each of these groups currently in Australia and finds that with the exception of the regulator and the new government, it may be questionable, at best. The findings reported in the article provide insight into the impetus for, and process of, the criminalistion initiative in Australia and have important practical consequences for the effectiveness of the future regime. Of international concern, they also suggest the need for caution in assuming the successful exportation of the American model of anti-cartel law enforcement.

antitrust, cartels, criminal law, regulation

Abstract:
This article reviews the proposal to make serious cartel conduct a criminal offence in Australia. It analyses the extent to which the proposal captures the criminality of the conduct to which it will apply; in particular, its culpability, harmfulness and moral wrongfulness. Two key assumptions underpin this analysis. First, criminalisation makes the morality of serious cartel activity a relevant consideration in the design and application of the new law. Secondly, recognition of the moral dimension will enhance the prospects of the criminal regime securing the support necessary for its effective enforcement. It should also boost the regime's deterrence value by facilitating internalisation of relevant moral norms in the business community. The article concludes that there is still much work to be done in refining and even rethinking aspects of the new offence to ensure that it properly reflects the criminal nature of hard core cartels.

business, cartel, criminal, Australia

Abstract:
In both the United States and Australia an initial but crucial step in the analysis performed for the purposes of merger regulation has been definition of the relevant market(s) in which competition may be affected. In recent years, the federal agencies in the United States have adopted an approach that excludes this step. Instead, their approach has been to examine the potential unilateral effects of a merger by assessing 'directly', using empirical techniques, the possibility of a supra-competitive price increase by the merged firm. This has been seen as a preferable approach in many ways to the traditional structural analysis to which market definition is integral. Is it likely that Australian regulators and courts would adopt a similar approach? This article addresses that question, concluding that there are good reasons for regarding such a prospect as remote.

United States, Australia, unilateral, competition, merger

Abstract:
The ACCC’s legal action for price fixing against the giant cardboard box company, Visy, and its billionaire owner, Richard Pratt, has captivated the media. This article investigates the significance of the case from a competition law enforcement perspective, examining various aspects of the Federal Court’s decision with respect to penalties, the implications of the case for the proposal to criminalise serious cartel conduct, and insights arising from the litigation by ‘victims’ of the cartel in relation to private enforcement of the competition provisions of the Trade Practices Act.

ACCC, competiiton law, cartel conduct

Abstract:
In January 2008 the Australia government released exposure draft materials relating to the criminalisation of cartel conduct for public comment. This paper reviews the Exposure Draft Materials in relation to the definition of cartel offences and the formulation of enforcement policy, including immunity/leniency and cooperation policies; highlights preferable possible approaches and the lessons that emerge from other overseas models; and canvasses what appear to be the main possible implications for a criminal cartel regime in New Zealand if New Zealand decides to develop such a regime.

criminal law, cartel conduct

Abstract:
A survey of cases over the last five years suggests that judges are taking an increasingly tough approach to penalties for corporations that have breached Pt IV of the TPA. This conclusion has been reached following an examination of the size of penalties imposed, views expressed as to the objects of penalisation and, most of all, attitudes towards several of the factors applied in assessing penalties over this period. These developments appear motivated by a growing judicial concern to promote general deterrence and accordingly, corporate respondents are finding that there is reduced scope for arguments in support of a penalty discount.

Trade Practices Act, penalties, deterrence, discount

Abstract:
For the ACCC there are “forks in the road” in deciding how to deal with the interaction between its highly acclaimed Immunity Policy for Cartel Conduct and (1) the criminalisation of serious cartel conduct; (2) the rise in private enforcement and damages claims in relation to cartel conduct; (3) the increased significance of cartel case settlement or, in the criminal context, plea negotiation; and (4) the potential strategy of offering alternative financial rewards for cartel information. In relation to each of these, this article (published in two parts) explores the issues involved; the ACCC’s current proposals for dealing with them (to the extent any such proposals exist); overseas models for tackling the issues; and the way forward in meeting the challenges and/or harnessing the opportunities presented. Part 1 deals with criminalisation and private enforcement. Part 2 of the article will deal with settlements and alternative rewards.

ACCC, cartel conduct, criminal law

Abstract:
For the ACCC there are ‘forks in the road’ in deciding how to deal with the interaction between its highly acclaimed Immunity Policy for Cartel Conduct and (1) the criminalisation of serious cartel conduct; (2) the rise in private enforcement and damages claims in relation to cartel conduct; (3) the increased significance of cartel case settlement or, in the criminal context, plea negotiation; and (4) the potential strategy of offering alternative financial rewards for cartel information. In relation to each of these, this article (published in two parts) explores the issues involved; the ACCC’s current proposals for dealing with them (to the extent any such proposals exist); overseas models for tackling the issues; and the way forward in meeting the challenges and/or harnessing the opportunities presented. Part 1 published in the previous issue, dealt with criminalisation and private enforcement. Part 2 of the article deals with settlements and alternative rewards.

ACCC, cartel conduct, criminal law

Abstract:
This article analyses and considers the implications of the decision of the High Court in Plaintiff S157/2002 v Commonwealth of Australia (2003) 195 ALR 24, handed down on 4 February 2003. In its decision the Court upheld the constitutional validity of amendments made to the Migration Act 1958 (Cth) in late 2001, the objective of which was to reduce, as far as is legally possible, the scope for judicial supervision of decisions under the Act. While concluding that the amendments are valid, the Court nevertheless construed them in a manner that has the potential to undermine seriously the achievement of that objective.

constitutional, administrative law

Abstract:
In United States of America v Oracle Corporation 331 F Supp 2d 1098 (NDCal 2004) the United States Government failed in its bid to enjoin the acquisition by Oracle Corporation of one of its largest rivals, PeopleSoft Inc, under the antitrust laws of that country. To a significant extent, the government’s failure was attributable to weaknesses in its evidentiary case. In particular, the court was not persuaded by the testimony of software customers, called as witnesses to express a view on the scope of the relevant market and the likely anticompetitive effects of the proposed acquisition in that market. The approach taken by the court to the customer testimony, as well as to expert evidence adduced in the proceeding, provides useful insights for those dealing with Australian merger cases under the Trade Practices Act 1974 (Cth). These insights will be relevant to litigation in the Federal Court, as well as to decisions made by the Australian Competition and Consumer Commission and the Australian Competition Tribunal in relation to the clearance and authorisation of merger proposals.

antitrust, competition law, litigation

Abstract:
Major constitutional reform was undertaken in South Africa in the mid-1990s. As part of this reform, rights to administrative justice were included in a Bill of Rights. In 2000 national legislation was passed to give effect to these rights. This article reviews one of the principal pieces of such legislation, the Promotion of Administrative Justice Act 2000, highlighting key similarities and differences to the Administrative Decisions (Judicial Review) Act 1977.

administrative law, constitutional legislation

Abstract:
This article is the second in a series of two articles published in this journal concerning the role played by industry evidence in establishing the existence of a market for the purposes of Part IV of the Trade Practices Act 1974 (Cth). The first article, published in the previous issue of this journal, addressed the sources and forms of such evidence. In this article, the use that has been made of industry evidence by courts in defining markets is examined. Such evidence is used by courts to make findings of fact concerning principally the sources and degree of competition faced by the firm(s) in question in the proceeding and based on these findings, to reach conclusions regarding the dimensions of the relevant market(s). The subject matter of the evidence concerns largely the behaviour in which the relevant firms engage in the market place. Courts need to be rigorous in their analysis of this evidence, particularly evidence of behaviour at the level of the firm(s) in question, bearing in mind that the object of the exercise is to identify the operation of effective constraints on the decision-making and conduct of those firm(s).

trade practices act, competition law

Abstract:
This article is the first in a series of two articles to be published in this journal concerning the role played by industry evidence in establishing the existence of a market for the purposes of Pt IV of the Trade Practices Act 1974 (Cth). This first article addresses the sources and forms of such evidence and in the second article (to be published in the June issue), the use that has been made of industry evidence by courts in defining markets is examined. These articles provide detailed guidance for practitioners and courts in dealing with a crucial category of evidence relating to an important issue in Pt IV proceedings. In particular, the range of evidentiary and conceptual issues involved in its use that have not hitherto been the subject of any close analysis are identified and discussed. In this first article, it is argued that business records of the industry adduced in evidence need to be examined with care so as to ensure that inferences drawn about constraints on the behaviour of firms in the marketplace are as accurate as possible.

trade practices act, competition law