Peter Costello

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Working Party to Examine Criminal Sanctions for Cartel Behaviour

NO.086

WORKING PARTY TO EXAMINE CRIMINAL SANCTIONS FOR CARTEL BEHAVIOUR

The Treasurer today announced terms of reference for an officials’ working party to consider whether appropriate criminal offences for cartel behaviour can be introduced into Commonwealth law.

The working party will examine matters, identified by the Review of the Competition Provisions of the Trade Practices Act 1974 (Dawson Review), that should be resolved before criminal sanctions can be introduced. These include determining an appropriate definition for any proposed offence, and a workable method of combining a clear and certain leniency policy within the criminal regime.

On 16 April 2003, the Government announced its in principle acceptance of the recommendation of the Dawson Review, that criminal sanctions be introduced, subject to further consideration of these issues.

The working party will comprise officials from the Treasury, the Attorney-General’s Department, the Australian Competition and Consumer Commission and the Commonwealth Director of Public Prosecutions.

The working party is expected to report to the Treasurer by the end of 2003.

Terms of reference are attached. The Committee will take into account submissions to, and the discussions of, the Dawson Review. Should interested parties wish to provide additional material, submissions should be forwarded by the end of November to:

Working Party on Penalties for Cartel Behaviour
C/- Department of the Treasury
Langton Crescent
PARKES ACT 2600


MELBOURNE
3 October 2003

Contact: Michael O’Brien
Treasurer’s Office
(03) 9650 0244


Working Party on Penalties for Cartel Behaviour
Terms of Reference

Having regard to Recommendation 10.1 of the Review of the Competition Provisions of the Trade Practices Act 1974 and the Commonwealth Government response, the working party is to consider and report on whether an appropriately defined criminal offence or offences can be introduced into Commonwealth law proscribing some or all of the activities that comprise cartel behaviour.

More specifically, the working party’s consideration of this matter is to include a consideration of:

  • the activities that comprise cartel behaviour and the provision of a workable definition of such behaviour, having regard to the definitions used in other jurisdictions and by the OECD;
  • feasible options for criminalising cartel behaviour, including recommendations as to the elements of any offence;
  • whether, and to what extent, any proposed offence might overlap with existing civil prohibitions and whether any measures (legislative or otherwise) are required to manage this overlap;
  • the appropriate maximum penalties for any proposed offence;
  • any appropriate defence against, or exemptions from, a proposed offence;
  • the development of a clear and certain leniency policy, having regard to the operation of leniency policies in other jurisdictions; and
  • how investigative, prosecutorial and other relevant legal processes might be used or might need to be modified to ensure the effectiveness of any proposed offence.

In undertaking this task, the working party is to examine relevant factors including, but not limited to, the following:

  • the role of criminal penalties as an effective deterrent to cartel behaviour;
  • the economic effects of cartels and penalising cartel behaviour;
  • the impact of any proposed penalties on business;
  • the detection of cartel behaviour;
  • similar offences in other jurisdictions and the implications for Australia of other jurisdictions’ experiences;
  • the transparency and accountability of investigative and prosecutorial agencies;
  • the compatibility of any proposal with existing Australian approaches to law enforcement; and
  • issues raised in the Review of the Competition Provisions of the Trade Practices Act 1974.

3 Oct 2003

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