Lawyer Monthly Magazine - September 2019 Edition

93 SEP 2019 | WWW.LAWYER-MONTHLY.COM Phillip Gibson is one of Australia’s leading defence law- yers, with over 30 years of experience in all areas of criminal law. His areas of expertise include complex multi- jurisdictional cases often involving corporate regulatory investigation; white collar and corporate crime; assets forfeiture; money laundering and proceeds of crime; ex- tradition; mutual assistance; Royal Commissions; bribery and corruption. Phillip has extensive experience in deal- ing with all major Australian and many international inves- tigative agencies. Established for over 50 years, Nyman Gibson Miralis is widely recognized as one of Australia’s leading defence firms with an exceptional track record appearing in some of the largest and most complex defence cases. NGM specializes in assisting companies and individuals the subject of white collar and corporate investigations and prosecutions as well as transnational criminal investigations. new global initiatives to facilitate self-reporting or whistleblowing utilise social media or online tools (such as in the German Bundeskartellamt). Increasingly severe penalties may also encourage applications for immunity. In addition, pecuniary penalties are considered the most appropriate deterrent tool to address cartel conduct. However, Australia lags behind; our average pecuniary penalty is a mere seven percent of the average penalty imposed in comparative jurisdictions. There may be a number of reasons for this: • Although Australia can impose substantial sanctions for breaches of competition law, our current maximum penalties are much lower than comparable jurisdictions. 2 • The ACCC has also indicated that penalties imposed in Australia fail to consider the size of the corporation. 3 Indeed, the highest monetary penalty imposed under the Act was A$45 million in 2018, 4 however, the subject corporation’s revenue for the 2017 financial year was just over A$25 billion. 5 • Moreover, unlike other comparative jurisdictions where a set methodology is applied in determining an appropriate penalty (for example, adjudicators measure the volume of affected sales in the country over the time period of the legal violation), Australian courts apply an ‘instinctive synthesis’ approach, where sentencing principles and aggravating/mitigating factors are considered to reach a discretionary judgment. Finally, given the increasingly multi-jurisdictional natureof cartel conduct, it is recommended 6 that the Act’s jurisdiction be extended to include conduct relating to trade or commerce within Australia, or between Australia and places outside of Australia, particularly where Australian consumers may be affected. Can you share the impact you make in this area? We represent clients charged with serious corporate crime and cartel conduct. Investigations are increasingly cross-jurisdictional, regulators continue to push for more severe penalties, and the risk at both corporate and individual level of public enforcement action increases. We have developed a sophisticated understanding of this changing environment: advancing technologies, fast- changing business practices, technical legal requirements of multiple jurisdictions, and dealings with major Australian and international investigative and regulatory agencies. Through our involvement in publications such as Lawyer Monthly and Global Legal Insights, we share knowledge and experience, engage with legal challenges, and identify areas of improvement in this area. LM CONTACT DETAILS ABOUT PHILLIP GIBSON ABOUT NYMAN GIBSON MIRALIS Phillip Gibson, Partner, Nyman Gibson Miralis Defence Lawyers and Advisors est. 1966 Level 9, 299 Elizabeth Street, Sydney NSW 2000 PO BOX 21147, World Square NSW 2002 DX 11543 SYDNEY DOWNTOWN p +61 2 9264 8884 ngm.com.au 1 Global Cartel Enforcement – 2017 Full Year Cartel Report, Allen & Overy LLP 2018 2 OECD, ‘Pecuniary Penalties for Competition Law Infringements in Australia (2018), 8, https://www.oecd.org/daf/competition/Australia-Pecuniary-Penalties-OECD- Report-2018.pdf. On review of a number of cartel cases up to November 2017, the average pecuniary penalty in Australia amounted to A$25.4 million, while the average base penalty in comparative jurisdictions was A$320.4 million. 3 Global Cartel Enforcement – 2017 Full Year Cartel Report, Allen & Overy LLP 2018 4 ACCC v Yazaki Corporation [2018] FCAFC 73. 5 https://www.yazaki-group.com/global/about/ar.html 6 Review by Professor Ian Harper, commencing 2014 (‘the Harper Review’) Client Choice By Phillip Gibson, Nyman Gibson Miralis