Given the global nature of cartel conduct and the focus by regulators on multi-nationals, it is important to consider any cross-border issues that may arise when attempting to enforce Australian law. Currently, s 5 of the CCA limits extraterritorial enforcement to conduct engaged in outside Australia by:
- ‘Bodies corporate incorporated or carrying on business within Australia; or
- Australian citizens; or
- Persons ordinarily resident within Australia.’1
The Panel in the Harper Review recommended this section be extended to include conduct that related to trade or commerce within Australia or between Australia and places outside Australia.
As cartel conduct is generally international in nature, a significant number of countries have come together to form the Cartel Working Group (“CWG”). The 64 member countries are from all six inhabited continents.2 The CWG, which forms part of the International Competition Network (“ICN”), attempts to ‘address the challenges of anti-cartel enforcement, including the prevention, detection, investigation and punishment of cartel conduct’.3 Essentially, the CWG achieves its mandate by facilitating international assistance in relation to enforcement for cartel matters. The CWG also serves as an information sharing platform. While there is still an official process for giving and receiving information, this facilitation provides a fast and effective method.
The CWG has indicated its priorities for 2018–2021. They are as follows:
- ‘improve the effectiveness of anti-cartel enforcement through education, examining legal challenges and identifying investigative techniques’;
- ‘promote familiarity with, and use of, existing work product and projects’;
- ‘expand existing work products’;
- ‘develop new practical guidance and avenues for exchanging effective enforcement practices’;
- ‘organise annual Cartel Workshops’;
- ‘strengthen CWG working procedures’; and
- ‘contribute to the broader work of the ICN.’4
Further to facilitating assistance between countries, the ICN also provides a significant amount of information in relation to anti-cartel enforcement. A number of manuals have been drafted and are available on the ICN website.
Although Australia has internally limited cross-border enforcement, in recent years it has joined together with other nations in order to investigate corporate cartels. In 2015, Australia and The People’s Republic of China signed a memorandum of understanding. The agreement essentially allows both countries to share information and evidence in relation to anti-competitive conduct. The People’s Republic of China currently has antitrust cooperation agreements with other countries such as Korea, Japan and America.
- Above n 1, s 5(1)(g)–(i).
- International Competition Network, ‘Cartel Working Group 2018 – 2021 Work Plan’ (2018), https://www.internationalcompetitionnetwork.org
- International Competition Network, ‘Cartel’ (2018), https://www.internationalcompetitionnetwork.org
- Above n 1.