The Criminalization of Serious Cartel Conduct in Australia

Manish Agarwal, David Round, May 14, 2010

On July 24, 2009, the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 (“Cartels Act”) came into force in Australia, introducing parallel criminal and civil prohibitions for designated serious forms of cartel conduct between competitors, namely price-fixing, market sharing, output restriction, and bid rigging. Each of these practices have featured heavily in court proceedings in Australia since the commencement of the Trade Practices Act 1974 and, in the last decade, have been the subject of considerable judicial, regulatory, and public concern as to their continuing presence in Australia and the apparently weak deterrent effect that available monetary penalties were having on enterprises and their executives.

The amendment reflected a growing trend towards criminalization of serious cartel conduct internationally, a movement that has been led by the United States and supported by international organizations such as the Organization for Economic Co-operation and Development (“OECD”)and the International Competition Network (“ICN”).

With the amendments, Australia has joined Brazil, Canada, Czech Republic, Estonia, Ireland, Israel, Korea, Japan, Norway, Romania, Russia, Slovakia, Slovenia, the United States, and the United Kingdom as countries that criminalize hard-core cartel activity.