Cartels (and related anti-competitive conduct) are prohibited in a variety of ways in Australia:

• Direct prohibition of cartel conduct in Part IV (Division 1)
  Since 24 July 2009 Australia has had a specific prohibition of 'cartel conduct' (Division 1 of Part IV). Parties engaged in cartel conduct may be guilty of a criminal offence or subject to a civil penalty (or, theoretically, both).
• General prohibition on anti-competitive agreements - section 45
  Contracts, arrangements or understandings (whether between competitors or not) which can be proven to substantially lesson competition, or be likely to do so, constitute a civil contravention of the Act pursuant to section 45. There are a number of anti-overlap exceptions built into s 45 (for example, conduct constituting RPM under s 48 will not be caught by s 45), but importantly there is no anti-overlap with Part IV, Division 1. Consequently, it is possible for a cartel to contravene the specific cartel prohibition and the general prohibition on anti-competitive agreements in s 45.
• Exclusionary provisions (primary boycotts) - section 45
  Exclusionary provisions (primary boycotts) between competitors (which may also be caught by the specific cartel provision) are also prohibited per se by section 45 of the Act, and are defined in section 4D. The scope and exceptions relating to exclusionary provisions in s 45 differ from the specific cartel provision, but there remains considerable overlap between the two.
• Dual listed company arrangements
  Dual listed company arrangements which substantially lessen competition are separately prohibited by section 49 of the Act.
• Price signalling conduct
  In 2012 'price signalling' legislation came into operation, prohibiting certain forms of price information exchange. Initially it applies only to the banking industry and it is subject to numerous exceptions. The provisions have not yet been the subject of litigation and remain controversial.
• Telecommunications
  A separate telecommunications regime applies in relation to anti-competitive conduct in that industry.

For a comprehensive discussion of Australia's cartel laws see: Beaton-Wells and Fisse, Australian Cartel Regulation: Law, Policy and Practice in an International Context (Cambridge University Press, 2011)

Note: The current Harper Review Final Report has recommended significant changes designed to simplify Australia's cartel laws.

The ACCC has also developed a cartel immunity policy which is available to the first party to come forward, subject to certain criteria. In addition, parties who cooperate may benefit from the ACCC's cooperation Policy:

Core prohibitions

Division 1 of Part IV of the CCA, containing provisions 44ZZRA - 44ZZRV, now contains the primary prohibition on cartel conduct (in the form of price fixing, bid rigging, market division and restricting outputs) in Australia. This Division was inserted by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009 and entered into operation on 24 July 2009. It replaced the former s 45A.

The criminal and civil prohibitions are the same save for an additional fault element of 'knowledge or belief' in relation to the criminal offence.

Cartel conduct is defined in s 44ZZRD as including four forms of activity: price fixing, market division, restricting outputs and bid rigging. This conduct is prohibited where made or given effect to in a 'contract, arrangement or understanding' and two or more of the parties involved are competitors (or would be but for the conduct). In relation to price fixing the provision must have the 'purpose or effect' of price fixing; in relation to the other forms of conduct the provision must have the requisite 'purpose'. Price fixing is defined in the same way in s 44ZZRD as it was in the former s 45A. There has been only one case to date that has considered the cartel provisions; it was a private civil action involving a claim of bid rigging: Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235 (19 March 2013).

Contract, arrangement or understanding

In Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235 (19 March 2013) Justice Gordon usefully summarised the legal principles in relation to establishing a contract, arrangement or understanding, which is necessary in order to establish cartel conduct, whether criminal or civil (emphasis added):

[para 263]: 1. an arrangement or understanding is apt to describe something less than a binding contract or agreement:  ...

2. the elements of an arrangement or understanding are:

2.1 evidence of a consensus or meeting of the minds of the parties, under which one party or both of them must assume an obligation or give an assurance or undertaking that it will act in a certain way which may not be enforceable at law:  ...

2.2 a hope or mere expectation that as a matter of fact a party will act in a certain way is not itself sufficient to establish an arrangement or understanding, even if it has been engendered by that party:  ...

2.3 the necessary consensus or meeting of minds need not involve, though it commonly will in fact embody, a reciprocity of obligations: ...

2.4 in relation to whether or not mutual obligation is a necessary ingredient of an arrangement or understanding, it has been suggested that it is difficult to envisage circumstances that would be an understanding within s 45 of the TPA involving the commitment by one party without some reciprocal obligation by the other party: ...

2.5 an arrangement may be informal as well as unenforceable with the parties free to withdraw from it or to act inconsistently with it, notwithstanding their adoption of it: ...

3. whether there is a difference between an arrangement and an understanding has not been resolved:  ...

4. whether or not an arrangement or understanding has been reached will depend on the view formed of all of the circumstances.  A meeting of minds may be proved by independent facts and from inferences drawn from primary facts including, without limitation, evidence of joint action by the parties in relation to relevant matters, evidence of parallel conduct and evidence of collusion between the parties.  As Isaacs J said in R v Associated Northern Collieries (1911) 14 CLR 387 at 400:

Community of purpose may be proved by independent facts, but it need not be.  If the other defendant is shown to be committing other acts, tending to the same end, then though primarily each set of acts is attributable to the person whose acts they are, and to him alone, there may be such a concurrence of time, character, direction and result as naturally to lead to the inference that these separate acts were the outcome of pre-concert, or some mutual contemporaneous engagement, or that they were themselves the manifestations of mutual consent to carry out a common purpose, thus forming as well as evidencing a combination to effect the one object towards which the separate acts are found to converge. 

...

[para 254] However, where proof of an arrangement or understanding rests on inferences to be drawn from primary facts, it is not sufficient for the circumstances to give rise to conflicting inferences of equal degrees of probability:  Luxton v Vines (1952) 85 CLR 352 at 359-60.

Penalties - criminal and civil

Criminal penalties of up to $220,000 per offence or up to 10 years imprisonment are available for individuals found to have committed a cartel offence. The civil penalties for making or giving effect to a cartel provision are the same as those currently available for other contraventions of Part IV. View remedies page.

Cartels and other anti-competitive agreements subject to a competition test

In addition to cartel conduct as defined in s 44ZZRD, section 45 of the Competition and Consumer Act (CCA) prohibits contracts, arrangements or understandings containing a provision which has the purpose, effect or likely effect of substantially lessening competition. These arrangements will generally be horizontal in nature, but this is not a requirement of s 45 (and as a number of anti-competitive vertical arrangements are caught by other more specific provisions in Part IV, anti-overlap provisions will give those specific provisions priority over s 45). Certain collective bargaining arrangements are permitted provided they have been notified in advance to the ACCC (see discussion under authorisation and notification below).

Until recently the conduct of dual listed companies was assessed under s 45. As a result of legislation introduced in 2006 dual listed companies are now assessed under s 49 which prohibits parties making (or giving effect to) a dual listed company arrangement if a provision of the proposed arrangement would have the purpose, effect or likely effect of substantially lessening competition.

The Competition and Consumer Amendment Act (No 1) 2011 came into operation on 6 June 2012. It is a complex price signalling prohibition and, at least initially, will apply only to the banking industry. The provisions are contained in Division 1A (Anti-competitive disclosure of pricing and other information) and is not subject to the criminal penalty regime.

• See separate price signalling page.

Anti-competitive conduct in the telecommunications industry is regulated by Part XIB CCA in addition to Part IV.  Section 151AJ(2) provides:

‘A carrier or carriage service provider engages in anti-competitive conduct if the carrier or carriage service provider:

(a) has a substantial degree of power in a telecommunications market; and

(b) either

(i) takes advantage of that power with the effect, or likely effect, of substantially lessening competition in that or any other telecommunications market; or

(ii) takes advantage of that power, and engages in other conduct on one or more occasions, with the combined effect, or likely combined effect, of substantially lessening competition in that or any other telecommunications market'.

Pursuant to s 151AJ(3) a carrier or carriage service provider also engages in anti-competitive conduct if they engage in conduct in contravention of ss 45, 45B, 46, 47 or 48 and the conduct relates to a telecommunications market.

Section 151AK contains the 'competition rule', providing that a 'carrier or carriage service provider must not engage in anti-competitive conduct.'

This Part allows the ACCC to issue a 'competition notice' stating that a carrier or carriage service provider is engaging in anti-competitive conduct or that they have contravened the competition rule. Where a notice is given by the ACCC stating that a carrier or provider has contravened or is contravening the rule, that notice is prima facie evidence of the matters described in the notice. The ACCC may also provide exemptions from the definition of anti-competitive conduct for certain conduct.

There are a number of exceptions to Part IV, including the cartel provisions.

The general Part IV exceptions are contained in section 51.

In relation to Part IV Division 1 conduct (cartels) exceptions (relating to anti-overlap and joint ventures) are contained in subdivision D.

In relation to cartel and other anti-competitive conduct captured by s 45, exceptions are contained within the provision itself.

Part IV Restrictive Trade Practices

Division 1

Division 1 - Cartel Conduct

• View in full as originally introduced

Subdivision A - Introduction

This sub-division includes the core definitional provision - s 44ZZRD

Subdivision B - Offences etc.

This sub-division includes the core criminal offence provisions (44ZZRF Making a contract etc. containing a cartel provision and 44ZZRG Giving effect to a cartel provision) and related provisions

Subdivision C - Civil penalty provisions

This sub-division contains the core criminal offence provisions (44ZZRJ Making a contract etc. containing a cartel provision and 44ZZRK Giving effect to a cartel provision ) and related provisions

Subdivision D - Exceptions

Division 1A (Anti-competitive disclosure of pricing and other information)

• See separate price signalling page.

Division 2 - Other relevant provisions

45 Contracts, arrangements or understandings that restrict dealings or affect competition

45B Covenants affecting competition

45C Covenants in relation to prices

45E Prohibition of contracts, arrangements or understandings affecting the supply or acquisition of goods or services

45EA Provisions contravening section 45E not to be given effect

45EB Sections 45D to 45EA do not affect operation of other provisions of Part

49 Dual listed company arrangements that affect competition

Repealed provisions

Section 45A repealed, effective 24 July 2009.

Part XIB - The telecommunications industry: Anti-competitive conduct and record-keeping rules

[The following contains select provisions from this part; for the full part see CCA]

Division 2 - Anti-competitive conduct

151AJ Anti-competitive conduct

151AK The Competition Rule

Contract, arrangement or understanding

Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235 (19 March 2013)
Bid rigging - provides useful summary of requirements for CAU from para 263.

ACCC v Leahy Petroleum Pty Ltd [2007] FCA 794

ACCC v TF Woollam & Son Pty Ltd [2011] FCA 973 (24 August 2011)
Price fixing - cover pricing in building tenders

Re British Basic Slag Ltd’s Agreements [1963] 2 All ER 807
Agreement

R v Associated Northern Collieries (1911) 14 CLR 387
Establishing collusion

TPC v David Jones (Australia) Pty Ltd (1986) 13 FCR 446
Establishing collusion; price fixing

TPC v Email Ltd (1980) 43 FLR 383
Establishing collusion; price fixing

TPC v Nicholas Enterprises (1979) 40 FLR 83
Contract, arrangement or understanding

TPC v Service Station Association Ltd (1993) 44 FCR 206
Contract, arrangement or understanding

Substantial lessening of competition

ASX Operations Pty Ltd v Pont Data Australia Pty Ltd (No. 1) (1990) 27 FCR 460

Dowling v Dalgety Australia Ltd (1992) 34 FCR 109
Substantial lessening of competition; purpose

AW Tyree Transformers Pty Ltd and Wilson Transformer Co Pty Ltd (1997) ATPR (Com) 50–247
Substantial lessening of competition

Gallagher v Pioneer Concrete (NSW) Pty Ltd (1993) 113 ALR 159
Substantial lessening of competition

Stationers Supply Pty Ltd v Victorian Authorised Newsagents Associated Ltd (1993) 44 FCR 35
Purpose of substantially lessening competition; exclusive dealing

Price Fixing

ACCC v TF Woollam & Son Pty Ltd [2011] FCA 973 (24 August 2011)
Price fixing - cover pricing in building tenders

ACCC v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617
Price fixing - remedies

TPC v David Jones (Australia) Pty Ltd (1986) 13 FCR 446
Establishing collusion; price fixing

TPC v Email Ltd (1980) 43 FLR 383
Establishing collusion; price fixing

ACCC v Flight Centre Limited (No 2) [2013] FCA 1313 (6 December 2013) (Principal judgment)
Attempted price fixing - inducement - competitors

Bid-rigging

Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235 (19 March 2013)
Cartels - bid rigging (on appeal)

Australia - books

Beaton-Wells and Fisse, Australian Cartel Regulation: Law, Policy and Practice in an International Context (Cambridge University Press, 2011)

Australia

View Reading room: cartels

Other jurisdictions - including articles relating to criminalization of cartels generally

Yuliya Bolotova, Cartel Overcharges: An Empirical Analysis, Working Paper, September 15, 2006

Jay Pil Choi and Heiko A Gerlach, 'Global Cartels, Leniency Programs and International Antitrust Cooperation' (March 2010),
CESifo Working Paper Series No 3005 [at SSRN]

John Connor - Slideshow - 'Cartels and Antitrust Portrayed 1990-2008' (December 2008)

Ari Hyytinen, Frode Steen and Otto Toivanen, 'Cartels Uncovered' (Discussion Paper, 16 March 2010)

Douglas Miller and John Connor, 'The Predictability of Global Cartel Fines' (2010) 2Concurrences: Review of Competition Law [at SSRN]

Gregory C Shaffer and Nathaniel H Nesbitt, 'Criminalizing Cartels: A Global Trend', University of Minnesota Law School, Legal Studies Research Paper Series, Research Paper No 11-26 - published at SSRN on 20 June 2011 [http://ssrn.com/abstract=1865971]

Andreas Stephen, The UK Cartel Offence: Lame Duck or Black Mamba?, CCP Working Paper 08-19

Florian Wagner-von Papp, 'Criminal Antitrust Law Enforcement in Germany: 'The Whole Point is Lost if you Keep it a Secret! Why Didn't You Tell the World, Eh?'' (in Beaton-Wells and Ezrachi (eds), Criminalising Cartels: Critical Studies of an Interdisciplinary Regulatory Movement, Hart Publishing, 2010) (abbreviated version available at SSRN)

Dawson Report (Chapter 10 discussing penalties for cartels)

Inquiry into the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 (Senate Report)

See Guidelines: cartels

ICN Member State Anti-Cartel Templates

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."

The Economic and Business History of Cartels in Australia