Competition and Consumer Act 2010 (Cth)
Section 44ZZRF
Making a contract etc. containing a cartel provision
Note: The Harper Reforms came into operation on 6 November 2017. This section has been and re-numbered. This page reflects the content of the provision immediately prior to the commencement of the Harper Reforms. Please visit section 45AF for the current provision
The provision
Offence
(1) A corporation commits an offence if:
(a) the corporation makes a contract or arrangement, or arrives at an understanding; and
(b) the contract, arrangement or understanding contains a cartel provision.
Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.
(2) The fault element for paragraph (1)(b) is knowledge or belief.
Penalty
(3) An offence against subsection (1) is punishable on conviction by a fine not exceeding the greater of the following:
(a) $10,000,000;
(b) if the court can determine the total value of the benefits that:
(i) have been obtained by one or more persons; and
(ii) are reasonably attributable to the commission
3 times that total value;
(c) if the court cannot determine the total value of those benefits—10% of the corporation’s annual turnover during the 12‑month period ending at the end of the month in which the corporation committed, or began committing, the offence.
Indictable offence
(4) An offence against subsection (1) is an indictable offence.
Legislative history
Introduced by Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009
Operative: 24 July 2009
Commentary
The insertion of this provision was part of the package of reforms introducing criminal penalties for cartel conduct. The reforms also created a parallel civil cartel prohibition, replacing the former s 45A which dealt directly with price-fixing.
The reforms were initially recommend by the Dawson Committee as part of its 2002-2003 inquiry into the Competition Law provisions of the Trade Practices Act.
See further information and resources on the cartel page.
