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Who is being targeted in the ACCC crackdown on cartel conduct?
Certain businesses are coming under scrutiny in the ACCC’s crackdown on cartel conduct. Here’s what in-house lawyers and businesses must do to ensure compliance.
Jess Feyder
A senior legal writer with expertise in competition and consumer law, Jennifer Bannan from Practical Guidance at LexisNexis, spoke with Lawyers Weekly about the trends emerging from the Australian Competition and Consumer Commission’s (ACCC) focus on cartel conduct.
“Interestingly, the regulator is pursuing criminal cases not only against large corporations but also against regional companies and moderately sized family-run businesses,” Ms Bannan explained.
This has become evident in several cases brought by the Commonwealth Department of Public Prosecutions (CDPP) at the recommendation of the ACCC over recent years, including in CDPP v Country Care (2021), CDPP v Alkaloids of Australia (2022) and CDPP v Vina Money (2022).
“The ACCC is not limiting prosecutions to deep-pocketed behemoths that one might expect the ACCC to be pursuing in these investigations,” she noted.
“What seems to be happening is, in these particular cases, they’re smaller, family-run, often regional businesses.
“The criminal prosecution brought against some of Australia's largest financial institutions was withdrawn many years after proceedings had been commenced. In some respects, cases brought against smaller corporations may be simpler to prosecute," explained Ms Bannan.
"Perhaps that's because the evidence is likely to be easier to compile, and the accused may not have the resources to engage in vigorous defence of the proceedings," Ms Bannan said, "But it may also be the case that these smaller organisations are more likely to contravene in the first place because they probably don't have in-house lawyers educating them on the boundaries of competition law on a regular basis.
In some of these cases, there were issues “with the level of knowledge of competition law, and whether legal advice was sought — this was covered in Alkaloids”, she said.
In that case, Justice Wendy Abraham stated that the individual concerned, Kenneth Joyce, was reckless as to whether the conduct was unlawful. Ms Bannan noted that the judge also commented about the fact that they hadn’t obtained legal advice when they entered long-running arrangements of monitoring competitors.
Another notable aspect of recent cases is that a number of individuals pleaded guilty to conduct rather than contesting proceedings.
For example, in the case CDPP v Vina Money (2022), four out of five of the accused pleaded guilty, and they became the first individuals sentenced under the criminal cartel laws. The CDPP subsequently abandoned the prosecution of the remaining accused. In the cases of CDPP v Alkaloids and CDPP v Bingo Industries, the defendants also pleaded guilty.
How must lawyers and businesses respond?
“It’s very clear from these cases it’s necessary for both big and small business to be aware of these laws,” Ms Bannan clarified. “If you’re an in-house lawyer, and you’re responsible for compliance within a business, it is incumbent on you to ensure that executives, directors, and management teams understand the boundaries of competition law.
“If they’re not already undertaking compliance and training, then they need to start prioritising that.”
With the penalties under competition and consumer law having increased fivefold recently, individuals must be educated on permissible conduct with competitors, Ms Bannan stated.
Anyone that’s having contact with competitors — in industry association meetings, or even casually, must ensure they are making decisions about price, margins, and costs independently of competitors, she illuminated.
A cartel can only occur when there has been a contract, arrangement or understanding with a competitor, Ms Bannan clarified.
"It is essential to not only understand the core elements of cartel conduct, but to be aware of the consequences.”
