Australian Criminal Law and Cartel Conduct: Key Criminal Provisions and Penalties

Under s 79 of the CCA, individuals who attempt to contravene, aid contravention, conspire to contravene or knowingly contravene cartel offence provisions may face up to 10 years’ imprisonment, a fine of 2,000 penalty units (currently AUD$420,000) or both.  Corporations currently face the same criminal penalties as they do under civil proceedings; however, directors, officers and employees involved in the cartel conduct are punished according to the above.

Although the newest amendments to the CCA have toughened Australia’s stance on corporate cartels, there has been some reprieve through the expansion of the ‘joint ventures’ defence.  Previously, this defence was only available if the cartel provision was explicitly stated in the contract of the joint venture.  Since the amendments have come into effect, the defence is now available if the cartel provision is contained within the parties ‘contract, arrangement or understanding’.1  In addition, the legitimate purposes for a joint venture have also been expanded.  The amended provision now allows joint ventures for the ‘acquisition of goods and services’.2  Initially, the joint venture defence was only available for the ‘production of goods’ and the ‘supply of goods and services’.3

While the amendments have expanded the available defence, they have also increased the number of elements that must be met in order for business dealings to quality as a joint venture.  For criminal prosecution, the cartel provision must be ‘for the purposes of a joint venture’ and must be ‘reasonably necessary for undertaking the joint venture’.4  Additionally, the defendant bears the burden of proof in such matters.5  When civil penalties are involved, the joint venture must ‘not be carried on for the purpose of substantially lessening competition’.6

Through the expansion of the joint ventures defence, corporations with less formal business connections will now have the opportunity the defend themselves against prosecution in relation to corporate cartel allegations.  The new provisions also permit a wider range of business dealing to fall within the exception.  Whilst this may be seen as a softening of the law, the latest amendments to the CCA have also included additional requirements that corporations must meet in order to qualify for the defence.  This is in an attempt to ensure the legislation strikes a balance between the criminalisation of corporate cartels and allowing the necessary business dealings of corporations to continue.

 

References

  1. Above n 1, s 45AO(d).
  2. Ibid, s 45AO(b)(iii).
  3. Ibid, s 45AO(b)(i)–(ii).
  4. Ibid, s 45AO(a).
  5. Ibid, s 45AO.
  6. Ibid, s 45AP(1)(c).

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