Penalties/remedies | Criminal Penalties

Criminal remedies for cartel conduct are available (since 24 July 2009):

• Section 44ZZRF - Making a contract etc containing a cartel provision
• Section 44ZZRG - Giving effect to a cartel provision
• Section 79 - Offences against section 44ZZRF or 44ZZRG
• Section 79A - Enforcement and recovery of certain fines
• Section 79B - Preference must be given to compensation for victims

It is the Commonwealth Director of Public Prosecutions (CDPP) which has the power to bring criminal indictments under the Act. The ACCC will refer serious cartel matters to the CDPP.

See also:

• Memorandum of Understanding between the CDPP and the ACCC Regarding Serious Cartel Conduct (July 2009)
• Prosecution Policy of the Commonwealth

Briefly, against a corporation a Court may impose impose a fine not exceeding the greater of (ss 44ZZRF and 44ZZRG):

1. $10 million; or
2. if the Court can determine the value of benefits obtained and reasonably attributable to the conduct, three times that value; or
3. if value of benefits cannot be determined, 10% of the annual turnover of the corporation during the period of 12 months ending at the end of the month in which the act/omission ocurred

Against an individual involved in the contravention, the Court may impose a term of imprisonment of up to 10 years or a fine not exceeding 2,000 penalty units (or both) (s 79).

The offences contained in s 44ZZRF and s 44ZZRG are indictable offences.

A corporation convicted of committing an offence by making or giving effect to a cartel provision is subject to fines not exceeding the greater of (ss 44ZZRF and 44ZZRG):

1. $10 million; or
2. if the Court can determine the value of benefits obtained and reasonably attributable to the conduct, three times that value; or
3. if value of benefits cannot be determined, 10% of the annual turnover of the corporation during the period of 12 months ending at the end of the month in which the act/omission ocurred

The offences contained in ss 44ZZRF and 44ZZRG are indictable offences.

An individual who (s 79(1)):

• attempts to contravene; or
• 'aids, abets, counsels or procures a person to contravene'; or
• 'induces, or attempts to induce, a person ... to contravene'; or
• 'is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of'; of
• 'conspires with others to contravene'

'a cartel offence provision is 'taken to have contravened that provision and is punishable' by:

• a term of imprisonment not exceeding 10 years; or
• a fine not exceeding 2,000 penalty units (currently valued at $360,000); or
• both

An individual involved in the contravention, the Court may impose a term of imprisonment of up to 10 years or a fine not exceeding 2,000 penalty units (s 79).

A penalty unit is defined in s 4AA of the Crimes Act 1914. In 2016 a penalty unit is equivalent to $180. The next review of the value of a penalty unit is due late 2018.

Section 79B provides that if the Court considers it appropriate to order payment of a pecuniary penalty (under s 76) or a fine (under ss 44ZZRF or 44ZZRG) and that it is appropriate to to order the defendant to pay compensation to a person suffering loss or damage as a result of the contravention and that the defendant lacks the financial resources to pay both, priority must be given to an order for compensation.

The ACCC currently has immunity and cooperation policies in place for cartel conduct. See immunity and cooperation page.

Details about the key cases relating to cartels in Australia can be found on my cartel page (cases).

For a comprehensive discussion of Australia's cartel laws, including criminal penalties, see: Beaton-Wells and Fisse, Australian Cartel Regulation: Law, Policy and Practice in an International Context (Cambridge University Press, 2011)

For research and commentary on cartel law in Australia see the reading room.

The Cartel Project
Launched April 2009 this is the home page for an "interdisciplinary empirical research project [which] will investigate how and why criminalisation of serious cartel conduct has become bipartisan policy in Australia."