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Competition Law Reading Room

Crime does not pay but hard-core cartel conduct may: Why it should be criminalised

Adrian Hoel
(2008) 16 Trade Practices Law Journal 102



'It is over five years since the Dawson Committee recommended that criminal sanctions for hard-core cartel conduct be introduced into the Trade Practices Act 1974 (Cth) to run alongside the existing civil penalties. Over four years ago, the Howard Government agreed, in principle, to introduce these changes. Since the 2004 federal election until 2007, the Howard Government had a majority in both Houses of Parliament, as well as bipartisan support for this legislation, and over three years ago, it decided how hard-core conduct should be defined. Despite all this, it did not introduce a Bill, or actually pass any such legislation. In October 2007, a number of senior executives, as well as the owner of the Visy group of companies, Richard Pratt, agreed to admit to what was the biggest known example of cartel conduct in Australian history. There has been a great deal of public debate, involving politicians and the media about the proceedings and the people caught up in them. This article will discuss the proposed amendments and their background. It will also revisit the major rationales which were held by the Dawson Committee to justify their introduction, as well discussing the nature of white-collar crime in general. The Visy proceedings and the public debate surrounding them will be used as backdrop for this discussion. Lastly, the article will discuss what justifications there may have been for the Howard Government’s failure to implement criminal sanctions despite having publicly declared its willingness to do so, and the likelihood of the Rudd Government doing so in the future.'



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