Cartel conduct is criminalised by the Competition and Consumer Act 2010.

The offence

It is an offence to make or give effect to a cartel provision. A cartel provision includes any provision of a contract, arrangement or understanding between persons, any two or more of whom are competitors, that has the purpose or likely effect of directly or indirectly fixing, controlling or maintaining, of the price, discount, allowance, rebate or credit in relation to goods or services supplied by any of the parties. It also includes:

• preventing, restricting or limiting the production of goods or the supply of goods or services by any of the parties;
• market sharing; and
• bid rigging.

This is a strict liability offence. It is sufficient to prove beyond reasonable doubt that the parties had knowledge or belief that the conduct in question had the elements that make up the definition of the cartel offence, even if they did not appreciate that it was in fact cartel conduct.

Sanctions

Individuals

Maximum fine of A$340,000, or 10 years’ imprisonment, or both.

Corporations

Maximum penalty of i) A$10 million, ii) three times the amount of the benefit gained, or iii) if the amount of the gain cannot be determined, 10 percent of the corporate group’s annual turnover in Australia.