The Australian Cartel Criminalisation Proposals: An Overview and Critique

Abstract

The Australian Treasurer issued a press release on 2 February 2005 outlining proposals for the criminalisation of serious cartel conduct. The proposals depart from the Enterprise Act model in many ways but have some common features including reliance on the concept of dishonesty as an element of the cartel offence. This article is an overview and critique of what the proposals say, or do not say, about: (1) dishonesty as a problematic element of a cartel offence; (2) the requirement of 'an intention to obtain a gain'; (3) the mental element of the cartel offence; (4) the element of agreement for the cartel offence; (5) the $1 million value of affected commerce threshold for prosecution; (6) the principle of corporate criminal responsibility that is to apply to the cartel offence; (7) the defences and exemptions that will apply to the cartel offence; (8) sentencing options and maximum penalties, and the application of proceeds of crime legislation and money-laundering offences; and (9) numerous other questions, including the challenge of defining the cartel offence in terms that can readily be communicated to a jury, the need for a 'one-stop' process for handling applications for immunity from both criminal prosecution and enforcement action for civil penalties, and whether powers of telecommunications interception should be available. Most of these issues are not straight-forward and should have been referred to the Australian Law Reform Commission for full examination and due public consultation. Exposure draft legislation has yet to be provided. Legislation may be introduced in 2008 after the forthcoming Federal election.

Keywords: Cartels, Competition Law, Antitrust, Criminalization, Australia

JEL Classification: K14, K21, L41