Lawyer Monthly Magazine - September 2019 Edition

92 WWW.LAWYER-MONTHLY.COM | SEP 2019 and CDPP encourage self- reporting, offering immunity to the first individual or corporation to disclose cartel conduct. The Act is however limited extraterritorially. Some trade and commerce affecting Australian consumers may escape sanctions under the Act. While enforcement is limited, Australia has entered into agreements with for example the PRC to share information and evidence regarding anti-competitive conduct. What more could be done to tackle corporate cartels? First, cartel conduct is extremely difficult to detect. There may be multiple firms involved in any one industry, customers are rarely in a position to detect conduct and, with the advent of globalisation and advanced technologies, cartel conduct is far more sophisticated (digital collusion; cross-jurisdictional). The number of immunity applications, a fundamental method of detection, is also declining globally. 1 Steps are being taken to address these issues. The ACCC is focused on developing its expertise in technology driven oversight and investigations, including analysing algorithms to address the emerging global trend of digital collusion. Additionally, The CDPP is responsible for prosecuting offences against Australian law, including cartel offences. Both corporations and individuals are liable under the Act to civil and criminal sanctions. The maximum pecuniary penalty per offence for a corporation is the greater of A$10 million, three times Can you share the legal enforcements in Australia which relate to tackling corporate cartel? In Australia, corporate cartels are regulated by the Competition and Consumer Act 2010 (the Act). It is an offence for two or more competitors to enter into any agreement that contains or gives effect to a ‘cartel provision’, which involves fixing prices, restricting output, allocating customers or territories, or rigging bids. The Act empowers the Australian Competition and Consumer Commission (ACCC) to investigate cartels, including compelling a person or company to provide information about a suspected breach, executing search warrants on company offices and referring serious cartel conduct to the Commonwealth Director of Public Prosecutions (CDPP). the benefits attributable to the offence; or if the benefits cannot be attributed, ten per cent of the corporation’s annual turnover in the 12 months preceding the offence. Individuals are liable to a maximum term of ten years full time imprisonment. In addition to conducting investigations, the ACCC Speaking to one of Lawyer Monthly’s trusted legal experts, Phillip Gibson, we address corporate cartel. Phillip tells us what Australia is doing to tackle corruption and where problems lie in this area. Corporate Law What Is Being Done to Tackle Cartels and Corruption? “Australia lags behind; our average pecuniary penalty is a mere seven percent of the average penalty imposed in comparative jurisdictions” Client Choice By Phillip Gibson, Nyman Gibson Miralis