13 Oct 2017

CU LAB: Doing Business in Australia ‒ Cartel regulation

Kirsten Webb sets out key Australian initiatives in the regulation of cartel activity.

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Cartel activity remains one of ACCC key enforcement priorities. That's not surprising given the scope for significant detriment to consumer welfare and competition that can arise from cartel conduct. The ACCC has an immunity policy which it uses as an effective tool to detect cartels ‒ both domestic and Australian involvement in international cartels. The ACCC also of course works closely with international regulators.

The ACCC itself is a very well-resourced and effective regulator and who has a range of powers and tools that can use and does use to investigate cartels. It can compel production of information and documents from individuals and from companies, and can also execute search warrants. It has a dedicated unit for cartel investigations. It has an announced target of 40 in-depth investigations annually and has expressly stated that it's directing resources toward cartel investigations and also complex anti-competitive conduct investigations.

We've seen one very significant development in cartel activity in Australia in the past year. Cartel conduct was criminalised in Australia back in 2009 but it was only in 2016 that we saw the first proceedings commenced by the Department of Public Prosecutions following an ACCC investigation.

In August 2017 we saw the Court impose a fine of $25 million on the first participant in those proceedings, which was an international shipping line. The judgment in that case makes it clear that the fine would have been double, say $50 million, but for the fact that that international shipping line resolved the proceedings early and agreed to provide material assistance to the ACCC in its ongoing proceedings against other shipping alleged to be involved in the cartel.

So what do we expect to see in the future in this area? Well the ACCC has made it very clear that continuing to investigate and take proceedings concerning cartel activity is one of its very key priorities and we'll see the workings out of the investigations that I mentioned through the investigation process and court system in the coming months and years.

We expect where the ACCC has evidence, it will favour the criminal prosecution route due to the more significant deterrents effect and also general society disapproval of cartel conduct. We also expect to see the ACCC seeking much higher penalties both in civil and in criminal proceedings. We've seen this in a number of cases that are currently before the Court and the real reason for this is to ensure that penalties in Australia are more in line with international penalties and aren't seen as simply a cost of doing business.