Corporate Financial Penalties for Cartel Conduct in Australia: A Critique

By Caron Beaton-Wells & Julie N. Clarke (Melbourne Law School)

Moves are afoot to review the approach taken to assessment of civil penalties for contraventions of Australia’s competition laws. The Australian Competition and Consumer Commission has made it clear that penalties are being set at levels too low to effectively deter and the OECD has recently published a report confirming that Australia has failed to keep pace with international trends in this field over the last decade. This paper contributes to the debate, with a particular focus on the level of and method for setting financial penalties for corporations for cartel conduct. It presents detailed statistics on the level of corporate financial penalties imposed from the time of enactment of the then Trade Practices Act 1974 to December 2017. It draws comparisons with corporate fines imposed in other jurisdictions, highlighting the substantial gap between Australia and major jurisdictions, the European Union and United States especially. The paper compares and critically analyses the approach taken in Australia and that taken in many other jurisdictions to penalty assessment and makes a series of recommendations calling for reforms that would shift the dial towards more effective deterrence in this jurisdiction.

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