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Penalties/remedies | Overview

 

Overview

Civil

The civil remedies/penalties available for contraventions of both Division 1 and Division 2 of Part IV of the CCA include:

(1) pecuniary penalties (s 76)

(2) damages (s 82)

(3) injunctions (s 80)

(4) divestiture (in relation to mergers) (s 81)

(5) non-punitive orders (eg, community service) (s 86C)

(6) punitive orders - adverse publicity orders (s 86D)

(7) disqualification from directorship (s 86E)

(8) other orders (s 87)

The Federal Court is empowered to grant declaratory relief pursuant to s 163A.

Criminal

Criminal penalties are also available for cartel conduct only (since 24 July 2009):

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:

 

The Law (CCA)

Part VI of the Act contains enforcement and remedies provisions

 

Civil penalties for contraventions of Part IV

Pecuniary penalties (s 76)

The court may impose a pecuniary penalty if satisfied a person (including a corporation) has contravened, attempted to contravene, aided or induced contravention or in any other way been involved in a contravention of Part IV of the Act.

The maximum penalty varies depending on the contravention; for most forms of anti-competitive conduct the maximum penalty for a corporation is (s 76(1A)) 'the greater of $10 million or three times the gain from the contravention or, where gain cannot be readily ascertained, 10 per cent of the turnover of the body corporate and all of its interconnected bodies corporate' and for an individual is $500,000 per contravention

For more details on pecuniary penalties see the pecuniary penalty page.

Damages (s 82)

A person who suffers loss or damage by conduct of another which contravenes Part IV may recover the amount of that loss. Action must be brought within six years from the date the cause of action arose.

For more details on damages see the separate damages page.

Injunctions (s 80)

Except in relation to merger matters (where application for injunction is restricted to the ACCC: s 80(1A)), an application for an injunction may be made by any person (inc the ACCC). It is not necessary for the applicant to have suffered or be likely to suffer loss or damage.

The Court may grant an injunction in terms it considers appropriate where satisfied a person has engaged in, or is proposing to engage in, conduct contravening the Act (inc aiding and abetting contravention).

Divestiture (s 81)

Where the Court finds that there has been a contravention of the merger provisions it may make an order for divestiture. In particular, section 81(1) provides that the ACCC or any other person may apply for an order giving 'directions for the purpose of securing the disposal by the person of all or any of the shares or assets acquired in contravention of that section.'

See divestiture page for more details.

Non-punitive orders (s 86C)

On application fo the ACCC or the CDPP, the Court may make an adverse publicity order in relation to a person found guilty of a cartel offence.

Punitive orders (s 86D)

Adverse publicity orders may be made in relation to a person who has been ordered to pay a pecuniary penalty under s 76 or who has been found guilty of a cartel offence (s 86D(1))

Disqualification from directorship (s 86E)

On application by the ACCC (or the CDPP in the case of cartel offences) a Court may, if satisfied a person has contravened, attempted to contravene, or been involved in a contravention of Part IV, order disqualification if it is satisfied such an order is justified.

When determining whether such disqualification is justified the Court may have regard to the persons 'conduct in relation to the management, business or property of any corporation' and any other matters it considers appropriate.

Other orders (s 87)

The Federal Court has broad power to make other remedial orders as a result of contraventions of Part IV. Other orders are, however, only available where proceedings have been instituted under one of the other provisions of Part IV (such as s 80 or s 82) (primary proceedings) and allows for ancillary remedial orders where loss or damage is suffered, regardless of whether there is an order for relief in the principal proceedings.

Section 87(2) sets out the remedial orders that can be made. They include:

  • declaring a contract void - an order declaring the whole or part of a contract, made between the person suffering (or likely to suffer) loss and the party who has contravened the Act, void (ab initio or from a subsequent date)
  • an order varying a contract
  • an order refusing to enforce any or all of the provisions of a contract
  • an order directing the refund of money or return of property to the person suffering loss or damage
  • an order directing payment of damages in the amount of loss or damage suffered
  • an order directing the repair of goods supplied
  • an order directing supply of services
  • an order relating to an instrument creating or transferring an interest in land, directing the person to execute an instrument varying the first-mentioned instrument or terminating the operation of the first-mentioned instrument

 

Criminal penalties

 

Immunity

The ACCC currently has immunity policies in place for cartel conduct and, more generally, a cooperation policy for enforcement matters.

See immunity and cooperation page.

 

Case law

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

 

Commentary

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

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