Criminalising Cartels: Australia's Slow Conversion

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.

Keywords: antitrust, cartels, criminal law, regulation

JEL Classifications: K14, K21, K49

Accepted Paper Series