Remedies, Penalties and Immunity/Cooperation policies

About remedies

Both civil and criminal remedies are now available for contraventions of Part IV of the CCA. Since 24 July 2009 a
new Division 1 of Part IV of the CCA prohibits cartel conduct both civilly and as a criminal offence. Division 2 of Part
IV, which contains the Part IV competition law prohibitions, is subject only to civil penalties.

The civil remedies are 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)

Criminal remedies are provided for in the following sections

• 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

Immunity

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

 

The Law (CCA)

Select provisions only - for more see CCA

• Part VI - Enforcement and remedies

 

Cases

• ACCC v Australian Abalone Pty Ltd [2007] FCA 1834
  Admitted price fixing and boycott conduct - discussion of agreed penalties and mention of propsed criminal penalties
• ACCC v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 (2 November 2007)
  Admission of cartel conduct - penalties of $36m + imposed
• ACCC v Ticketek Pty Ltd [2011] FCA 1489 (22 December 2011)
  Discussion of measure of penalties - agreed penalties

More forthcoming

 

Articles

View reading room - administration and penalties

View reading room - cartels (including criminal penalties and immunity)

On immunity, see in particular:

Beaton-Wells, Caron Y.,Forks in the Road: Challenges Facing the ACCC's Immunity Policy for Cartel Conduct (Part 1) (June 10,
2009). Competition and Consumer Law Journal, Vol 16, 2008; U of Melbourne Legal Studies Research Paper No. 403.
Available at SSRN: http://ssrn.com/abstract=1417123

Beaton-Wells, Caron Y.,Forks in the Road: Challenges Facing the ACCC's Immunity Policy for Cartel Conduct (Part 2) (June 10,
2009). Competition and Consumer Law Journal, Vol. 16, 2008; U of Melbourne Legal Studies Research Paper No. 404.
Available at SSRN: http://ssrn.com/abstract=1417105

 

Videos (Immunity/Leniency Videos)

Leniency policies have led to the creation of some great videos/advertisements by competition agencies

Netherlands Competition Authority’s Leniency in Cartel Cases

Poland - Office of Competition and Consumer Protection

Singapore - Competition Commission - Cartels (WMV)

Sweden - Swedish Competition Authority 'Be the First to Tell' Video

 

Reports

Forthcoming

 

Guidelines

ACCC, Immunity Policy for Cartel Conduct 2009

ACCC, Immunity Policy Interpretation Guidelines 2009

DPP, Prosecution Policy of the Commonwealth (see Annexure 2)

 

Useful links

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."