Australian Cartel Law: Recent Developments – First Set of Two Sets
Brent Fisse
Australian Business Law Review
Brent Fisse, ‘Australian Cartel Law: Recent Developments – First Set of Two Sets’ (2023) 51(2) Australian Business Law Review 70
Abstract
This article surveys recent developments in Australian cartel law. There are many recent developments. The First Set discusses the following developments. Controversy surrounds the bank cartel case (2018–2022). What was the theory of the case? What would happen in a replay of the prosecution today? Escalated maximum fines and civil monetary penalties came into effect on 10 November 2022 under the Treasury Laws Amendment (More Competition, Better Prices) Act 2022 (Cth). These are more huff than puff. Assessment of civil penalties is now subject to the ground-shaking and troubling decision of the High Court of Australia in Australian Building and Construction Commissioner v Pattinson (2022). The legislative framework for the assessment of fines under the Crimes Act 1914 (Cth) remains ill-designed and outmoded. Enforcement strategies are needed to help ensure that corporations take effective precautions against cartel conduct. Is counterfactual analysis relevant to liability for price fixing? The Supreme Court of New Zealand has held “No”. Overreach (unjustifiably wide scope of liability) still arises in many situations where the definition of a “cartel provision” in s 45AD of the Competition and Consumer Act 2010 (Cth) is applied. In Australian Competition and Consumer Commission v BlueScope Steel Ltd (No 5) O’Bryan J held that the concepts of “commitment” and “assumption of an obligation” do not apply where an “understanding” is the type of contract, arrangement or understanding alleged. The complexity of the definitions of the cartel prohibitions remains other-worldly and undermines the law. The Second Set of recent developments in Australian cartel law is discussed in a later issue of the Review.