Working Party Report on Criminal Penalties for Cartel Behaviour 2004

This document - which was produced in 2004 - was released only at the end of 2010 following several FOI requests (including court challenges) by Brent Fisse, and was only successful following changes to the FOI laws. It recommends against 'dishonesty' as a requirement for the cartel offence, instead recommending that 'secrecy' distinguish criminal cartel conduct. The Government was silent on this recommendation when it subsequently released its discussion paper calling for comment on an appropriate means of distinguishing civil from criminal cartel conduct.

These documents were released on 21 February 2011. They are now available from this site.

Treasury Executive Minute - Anticompetitive Price Signalling and Information Exchange
Minute dated 22 October 2010 - 28 page document, heavily redacted in parts (particulalry re: legal advice received)

This includes a summary of some of the relevant issues, a summary of submissions made to the 2009 inquiry on the meaning of understanding and, most significantly, a memo from LECG Ltd Director (now ACCC Commissioner), Dr Jill Walker. This memo (datd 5 May 2009, prior to her appointment as an ACCC COmmissioner) sets out the limitations of the Act in relation to facilitating practices, discusses the economic issues and addresses the question of the appropriate threshold test. It was one of the documents relied upon to develop the government's propsed model for addressing facilitating practices. Significantly, Dr Walker recommends against the per se prohibition of facilitating practices. Notable quotes from Dr Walker's memo:

[19] Most economicsts and Courts around the world agree that purely unilateral market conduct by oligopolists, taking into account the expected reactions of others, should not constitute a breach of the law. The meain reason for this is that there is no clear remedy ...

[20] Where oligopolists go beyond purely unilateral market conduct, and engage in some form of identifiable facilitating practice, however, there is the potential for a remedy - stopping the conduct which is facilitating the collusive outcome. ...

[25] These considerations would seem to favour ... the ... approach of adding a specific offence of facilitating or concerted practices. ... I would lean towards ... replacing the phrase "contract, arrangement or understanding" with "agreement or concerted practice" ...

The relevant threshold

[27] While facilitating practices can help parties toa chieve a collusive outcome, the very same practices can often be pro-competitive in different market circumstances. ... Indeed, the communication of information through markets is a critical underpinning of the economy.

[28] One example of the difficulties that might arises [sic] is the use of price boards by adjacent petrol stations, which can facilitate reaching a tacitly collusive outcome, since posted increases can be quickly rescinded if they are not followed. However, such price boards also benefit consumers by informing them of prices and facilitating comparison between retailers before they drive up to the pump. This can be contrasted with the rapid transmission of Informed Sources price data to petrol retailers across a relevant market, which could facilitate market wide price coordination but the data is not available to consumers. [footnote omitted] ..

[30] This suggests that few, if any, facilitating practices should be subject to a per se test. One candidate, however, is the secret exchange of price lists between competitors. ... The problem is that such a provision seems likely to simply result in the modification of conduct to publicise the price exchanges, thereby lifting the conduct out of the per se category, because it would be too difficult to draw a bright line between those public actions which should be condemned per se and those which should not. It all depends on the market circumstances. If it is not possible to carve out a workable per se offence in practice, however desirable in theory, the same considerations would seem to suggest that it would be inappropriate to extend criminal liability to facilitating practices. [emphasis added]

[31] The logical appraoch would be to extend the current teset of "purpose, effect or likely effect of substantially lessening competition in a market" to the conduct of concerted practices. ...

Memo - ACCC Power to Investigate Pricing Issues
Memo dated 21 October 2010 from Andrew Deitz (Manager, Infrastructure, Competition and Consumer Division, Treasury) to Jim Murphy (Executive Director, Markets Group, Australian Treasury), outlining the possible activities the ACCC can undertake to investigate competition concerns it may have in relation to banks. It notes that 'in the absence of either a suspected breach of Part IV, or a Ministerial direction, the ACCC's powers in this area are limited to research and advocacy'.

Competition Policy and Market Structure aspects of the National Broadband Network

The documents released include:

• Policy implementation report relating to NBN - 24 March 2009
• Treasury executive minute - Policy approval for greenfield TPA amendments

The documents released related to the provisions of the Competition and Consumer Amendment Bill (No.1) 2011, and Competition and Consumer Amendment Bill Exposure Draft (December 2010). These related to new Price Signalling laws.