Home Page / Legislation / Competition and Consumer Act 2010 / s 44ZZRG

Competition and Consumer Act 2010 (Cth)

WarningSection 44ZZRG
Giving effect to 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 45AG for the current provision


The provision


(1) A corporation commits an offence if:

(a) a contract, arrangement or understanding contains a cartel provision; and

(b) the corporation gives effect to the cartel provision.

Note: Chapter 2 of the Criminal Code sets out the general principles of criminal responsibility.

(2) The fault element for paragraph (1)(a) is knowledge or belief.


(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 of the offence;

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.

Pre-commencement contracts etc.

(4) Paragraph (1)(a) applies to contracts or arrangements made, or understandings arrived at, before, at or after the commencement of this section.

Indictable offence

(5) An offence against subsection (1) is an indictable offence.


Legislative history


Relevant cases

Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha [2017] FCA 876
First criminal cartel conviction; $25m penalty (50%discount for guilty plea)
The Court considered the elements of the offence and the factors relevant to determination of an appropriate penalty.




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.

Consideration by the Courts

The fault elements (s 44ZZRG(2))

The fault element is the only distinguishing feature between the criminal and civil prohibitions on cartel conduct (in ss 44ZZRF and 44ZZRG (criminal) and 44ZZRJ and 44ZZRK (civil)).

The fault element in s 44ZZRG is knowledge or belief in relation to the existence of a cartel provision in a contract, arrangement or understanding. When read with the Criminal Code this it must be demonstrated that the the corporation intendedto give effect to a cartel provision.

In CDPP v Nippon Yusen Kabushiki Kaisha [2017] FCA 876 Justice Wigney noted

[para 173] Subsection 44ZZRG(2) provides that the fault element for paragraph (1)(a) is knowledge or belief. That simply means that, in accordance with the general principles of criminal responsibility set out in Chapter 2 of the Criminal Code Act 1995 (Cth), it is necessary to prove that the corporation knew or believed that the relevant contract, arrangement or understanding contained a cartel provision. No fault element is specified in relation to paragraph (1)(b). It follows that the fault element for the conduct in that paragraph is intention: s 5.6 of the Criminal Code. It must accordingly be proved that the corporation intended to give effect to the cartel provision. It should perhaps be noted in this context that these fault elements are the only difference between the criminal offence created by s 44ZZRG and the civil penalty provision concerning giving effect to a cartel provision in s 44ZZRK. Section 44ZZRG(5) provides that an offence against subsection (1) is an indictable offence.

More information

See further information and resources on the cartel page.