Home Page | Law Overview | Penalties and other remedies

Penaties and other remedies

 

Overview

cartelsCivil penalties

The civil remedies/penalties available for contraventions of both Division 1 and Division 2 of Part IV of the CCA include:

(1) pecuniary penalties (s 76)

(2) damages (s 82)

(3) injunctions (s 80) (not available to private parties in merger cases)

(4) divestiture (in relation to mergers) (s 81)

(5) non-punitive orders (eg, community service) (s 86C)

(6) punitive orders - adverse publicity orders (s 86D)

(7) disqualification from directorship (s 86E)

(8) other orders (s 87)

The Federal Court is empowered to grant declaratory relief pursuant to s 163A.

Criminal penalties

Criminal penalties are also available for cartel conduct only (since 24 July 2009):

It is the Commonwealth Director of Public Prosecutions (CDPP) which has the power to bring criminal indictments under the Act. The ACCC will refer serious cartel matters to the CDPP.

See also:

 

The legislation

Part VI of the Act contains enforcement and remedies provisions

 

Civil penalties

Pecuniary penalties

Circumstances in which penalty can be imposed

The court may impose a pecuniary penalty if satisfied a person (including a corporation) has contravened, attempted to contravene, aided or induced contravention or in any other way been involved in a contravention of Part IV of the Act.

Specifically, section 76(1) provides that the Court may impose a pecuniary penalty if satisfied a person (including a corporation) has:

  • contravened a provision of Part IV;
  • attempted to contravene a provision of Part IV; or
  • 'aided, abetted, counselled or procured' a contravention of a provision of Part IV; or
  • induced or attempted to induce a contravention of a provision of Part IV; or
  • been 'in any way, directly or indirectly, knowingly concerned in, or party to, the contravention' by a person of a provision of Part IV; or
  • 'has conspired with others' to contravene a provision of Part IV.

Maximum pecuniary penalty

For corporations

The maximum penalty varies depending on the contravention. For most forms of anti-competitive conduct* the maximum penalty for a corporation is the highest of (s 76(1A))

  1. $10 million; or
  2. (a) if the Court can determine the value of benefits obtained and reasonably attributable to the conduct, three times that value; or
    (b) if value of benefits cannot be determined, 10% of the annual turnover of the corporation during the period of 12 months ending at the end of the month in which the act/omission ocurred
* For contraventions relating to certain secondary boycotts (ss 45D, 45DB, 45E and 45EA) the maximum penalty is $750,000 for corporations

 

For individuals

For individuals, a contravention of Part IV attracts a maximum penalty of $500,000** (s 76(1B))

Determining the appropriate penalty

Subject to the maximum penalty, the Court may order payment of a pecuniary penalty as it determines:

'appropriate having regard to all relevant matters including the nature and extent of the act or omission and of any loss or damage suffered as a result of the act or omission, the circumstances in which the act or omission took place and whether the person has previously been found by the Court in proceedings under this Part or Part XIB to have engaged in any similar conduct.' (s 76(1))

Section 76(1) makes clear that the following key factors may be taken into account:

  • Nature and extent of the act or omission
  • Any loss or damage resulting from the act or omission
  • Circumstances in which act or omission has taken place
  • Previous contravensions

The list is not exclusive and judicial guidance is useful.

TPC v CSR [1990] FCA 762; (1991) ATPR 41-076

In TPC v CSR Justice French (as he then was) the Court set out a number of general principles relating to pecuniary penalties [my emphasis]. These continue to be cited with approval.

[para 38] The provisions of Pt. IV of the Trade Practices Act 1974 are directed to procuring and maintaining competition in trade and commerce ... They are of a regulatory rather than penal character. Proceedings for their enforcement by recovery of pecuniary penalties are not classed as criminal prosecutions. ... Unlike many kinds of criminal prosecution, therefore, it is not necessary to measure the contravening conduct against some general communal morality in which the law is embedded. Aspects of some commercial behaviour, such as ruthlessness and expansionary ambition, are not elements of the classes of conduct prohibited by Pt. IV nor even aggravating factors. For those same attributes may be found in vigorous and lawful competition.

[para 39] characterisation of contravening conduct in terms of a morality larger than that which is defined by the legislative purpose is misplaced. ...

[para 40] Punishment for breaches of the criminal law traditionally involves three elements: deterrence, both general and individual, retribution and rehabilitation. Neither retribution nor rehabilitation, within the sense of the Old and New Testament moralities that imbue much of our criminal law, have any part to play in economic regulation of the kind contemplated by Pt. IV. Nor, if it be necessary to say so, is there any compensatory element in the penalty fixing process ... The principal, and I think probably the only, object of the penalties imposed by s.76 is to attempt to put a price on contravention that is sufficiently high to deter repetition by the contravenor and by others who might be tempted to contravene the Act.

[para 41] There has been a significant number of decisions of the Court which have considered the operation of s.76 ... The primacy of the deterrent purpose in the imposition of penalty was identified at an early stage

[para 42] The assessment of a penalty of appropriate deterrent value will have regard to a number of factors which have been canvassed in the cases. These include the following:

1. The nature and extent of the contravening conduct.

2. The amount of loss or damage caused.

3. The circumstances in which the conduct took place.

4. The size of the contravening company.

5. The degree of power it has, as evidenced by its market share and ease of entry into the market.

6. The deliberateness of the contravention and the period over which it extended.

7. Whether the contravention arose out of the conduct of senior management or at a lower level.

8. Whether the company has a corporate culture conducive to compliance with the Act, as evidenced by educational programs and disciplinary or other corrective measures in response to an acknowledged contravention.

9. Whether the company has shown a disposition to co-operate with the authorities responsible for the enforcement of the Act in relation to the contravention.

The first three factors are all expressly mentioned in s.76. They can be regarded as measures of the scope and impact of the conduct and it is conducive to deterrence that the greater the significance of these elements, the heavier the penalty should be. ... The need for commercial realism in fixing penalties has been mentioned in more than one decision of the Court. In Trade Practices Commission v. Stihl Chain Saws (Aust) Pty Ltd (1978) ATPR 40-091, Smithers J. at 17,896 said:

"The penalty should constitute a real punishment proportionate to the deliberation with which the defendant contravened the provisions of the Act. It should be sufficiently high to have a deterrent quality, and it should be kept in mind that the Act operates in a commercial environment where deterrence of those minded to contravene its provisions is not likely to be achieved by penalties which are not realistic. It should reflect the will of Parliament that the commercial standards laid down in the Act must be observed, but not be so high as to be oppressive."

...

 

 

ACCC v Visa Inc [2015] FCA 1020 [admitted contravention of s 47; discussion of relevant principles relating to pecuniary penalties from para 80, including the following:]

[80] The starting point in considering the relevant principles in relation to the fixing of an appropriate pecuniary penalty for a contravention of s 47 of the Act is, not surprisingly, the terms of s 76. The amount of the pecuniary penalty that the Court should order the contravener to pay is the amount which the Court determines to be “appropriate” having regard to all relevant matters. Four particular considerations are then listed. These four considerations may be taken to be mandatory considerations. They are: first, the nature and extent of the act or omission which constitutes the relevant contravention; second, any loss or damage suffered as a result of the act or omission; third, the circumstances in which the act or omission took place; and fourth, whether the person has previously been found by the Court in proceedings under Parts VI and XIB to have engaged in similar conduct. This list is obviously not exhaustive.

[81] Since the decision of this Court in Trade Practices Commission v CSR Ltd (1991) ATPR 41-076 it has been customary for judges, when fixing the amount of a pecuniary penalty or penalties under s 76 of the Act, to refer to a checklist of matters that are usually relevant to the exercise of determining an appropriate pecuniary penalty. This list, which has been expanded and developed in later cases, largely overlaps with the four mandatory considerations referred to in s 76, or includes matters that are subsets of, or slightly more specific descriptions of factors that would otherwise fall within one or more of the four mandatory considerations.

[82] Lest it be thought that there has been some departure from custom here, the list of potentially relevant matters includes the following: the size and financial position of the contravening company; whether the contravention was intentional; the period over which the contravention extended; whether the contravening conduct was systematic, deliberate or covert; whether senior management were aware of or involved in the contravention; whether the contravening company had a corporate culture conducive to compliance with the Act; whether the company co-operated with the ACCC; whether the contravener has engaged in similar conduct in the past; and the effect on the functioning of the market and other economic effects of the conduct. Each of these matters is relevant, to a greater or lesser extent, to the fixing of the penalty in this case.

[83] This list is plainly not exhaustive. Nor should it be approached in a regimented or formulaic way. To do that would impermissibly constrain or formalise what is, at the end of the day, a broad evaluative judgment.

...

 

Where the same conduct contravenes multiple provisions

Where conduct contrevenes two or more provisions (other than the criminal cartel provisions) action may be brought in relation to one or more provisions, but a person is not liable to more than one pecuniary penalty in respect of the same conduct (s 76(3)).

Compensation given priority over fine

Section 79B provides that if the Court considers it appropriate to order payment of a pecuniary penalty (under s 76) or a fine (under ss 44ZZRF or 44ZZRG) and that it is appropriate to to order the defendant to pay compensation to a person suffering loss or damage as a result of the contravention and that the defendant lacks the financial resources to pay both, priority must be given to an order for compensation.

Cooperation policy in relation to pecuniary penalties

The ACCC, Cooperation Policy for Enforcement Matters (July 2002) sets out the ACCC's position regarding immunity or leniency following cooperation in enforcement matters. The guidelines are expressed to be 'flexible and intended only as an indication of the factors the Commission will consider relevant when considering leniency'. Recognition of cooperation can take the form of complete or partial immunity, reduction in penalty or administrative settlement in lieu of litigation. It applies to all civil matters under the Act.

In relation to penalties, however, it is important to note that it is only the Court that can impose penalties and determine their appropriate measure. The ACCC can, and frequently does, agree with parties who have made admissions and/or cooperated in ways about the penalties to put to the Court. Doubt about whether or not the ACCC could continue to make submissions about proposed penalties was removed as a result of a High Court ruling in 2015; see 'agreed penalties', below.

Agreed penalties

It is only the Court that can impose penalties and determine their appropriate measure. The ACCC can, and frequently does, agree with parties who have made admissions and/or cooperated in ways about the penalties to put to the Court.

In 2015 some doubt emerged about whether or not the ACCC could continue to make submissions about proposed penalties when the Full Federal Court ruled that joint submissions by parties in relation to pecuniary parties was not permitted. Although not a competition case, it would have equal application to such cases. This followed an earlier High Court decision (Barbaro) in which that Court held that the prosecution should not nominating a sentencing range in relation to criminal sentencing proceedings.

The matter was appealed to the High Court and the key issue on appeal to the High Court was whether or not the reasoning inBarbaroshould be applied to civil pecuniary penalties or whether parties could continue to make joint submissions with regulators in relation to an appropriate penalty or penalty range. The High Court unanimously held that the reasoning in Barbaro did not apply to civil pecuniary penalties and that, as a result, parties to civil proceedings can continue to submit agreed penalties to the court (which may or may not be accepted).

In their joint judgment, French CJ, Kiefel, Bell, Nettle and Gordon JJ concluded that 'decision in Barbaro does not apply to civil penalty proceedings and a court is not precluded from receiving and, if appropriate, accepting an agreed or other civil penalty submission.' (para 1). In separate (brief) reasons for judgment, Justice Gageler agreed with the conclusion in the majority reasons that Barbaro does not apply to civil penalty proceedings and joined in the proposed orders. In a separate reasons Justice Keane also agreed that the appeals should be allowed for the reasons given by the majority and made a few additional observations.

For more details see:

Penalty cases

Most cases involve discussion of pecuniary penalties. They include:

 

Damages

Private actions may be brought for contraventions of the competition law provisions

A person who suffers loss or damage by conduct of another which contravenes Part IV may recover the amount of that loss. Action must be brought within six years from the date the cause of action arose.

The provision (section 82)

Section 82 of the CCA provides:

(1) A person who suffers loss or damage by conduct of another person that was done in contravention of a provision of Part IV or IVB, or of section 55B, 60C or 60K, may recover the amount of the loss or damage by action against that other person or against any person involved in the contravention.

(2) An action under subsection (1) may be commenced at any time within 6 years after the day on which the cause of action that relates to the conduct accrued.

Matters to consider

In Norcast S.ár.L v Bradken Limited (No 2) [2013] FCA 235 (19 March 2013) Justice Gordon set out the elements of a damages claim under section 82 (my emphasis):

[301] Section 82 has at least five discrete elements: Marks v GIO Australia Holdings Limited [1998] HCA 69; (1998) 196 CLR 494 at [95]. One element is that only a person who has suffered loss or damage may rely on the section: I & L Securities Pty Limited v HTW Valuers (Brisbane) Pty Limited [2002] HCA 41; (2002) 210 CLR 109 at [42]- [45]. Another element is the causal requirement that the injury be sustained by the contravention: Marks at [95]. If the Court finds that damage has occurred, it must do its best to quantify the loss even if a degree of speculation and guess work is involved: Enzed Holdings Ltd v Wynthea Pty Ltd [1984] FCA 373; (1984) 57 ALR 167 at 183. Of course, loss or damage includes economic or financial loss as well consequential loss which is a direct result of the conduct in question: Wardley Australia Limited v Western Australia [1992] HCA 55; (1992) 175 CLR 514 and Frith v Gold Coast Mineral Springs Pty Ltd [1983] FCA 28; (1983) 65 FLR 213 at 232.

Cases

There has been relatively little private litigation in competition law matters giving rise to damages claims; in many cases the matters have been settled prior to judgment. A recent example is:

For a useful list of competition cases involving private litigation between 2004-2014 (and the outcomes) see:

Alexandra Merrett and Rhonda L Smith, 'The public benefits of private litigation' (July 2014) 19 The State of Competition

 

Injunctions

Except in relation to merger matters (where application for injunction is restricted to the ACCC: s 80(1A)), an application for an injunction may be made by any person (inc the ACCC). It is not necessary for the applicant to have suffered or be likely to suffer loss or damage (section 80).

The Court may grant an injunction in terms it considers appropriate where satisfied a person has engaged in, or is proposing to engage in, conduct contravening the Act (inc aiding and abetting contravention).

 

Divestiture

Where the Court finds that there has been a contravention of the merger provisions it may make an order for divestiture. In particular, section 81(1) provides that the ACCC or any other person may apply for an order giving 'directions for the purpose of securing the disposal by the person of all or any of the shares or assets acquired in contravention of that section.'

 

Non-punitive orders (86C)

On application fo the ACCC or the CDPP, the Court may make an adverse publicity order in relation to a person found guilty of a cartel offence.

 

Punitive orders (86D)

Adverse publicity orders may be made in relation to a person who has been ordered to pay a pecuniary penalty under s 76 or who has been found guilty of a cartel offence (s 86D(1))

 

Disqualification from directorship (86E)

On application by the ACCC (or the CDPP in the case of cartel offences) a Court may, if satisfied a person has contravened, attempted to contravene, or been involved in a contravention of Part IV, order disqualification if it is satisfied such an order is justified.

When determining whether such disqualification is justified the Court may have regard to the persons 'conduct in relation to the management, business or property of any corporation' and any other matters it considers appropriate.

 

Other orders

The Federal Court has broad power to make other remedial orders as a result of contraventions of Part IV. Other orders are, however, only available where proceedings have been instituted under one of the other provisions of Part IV (such as s 80 or s 82) (primary proceedings) and allows for ancillary remedial orders where loss or damage is suffered, regardless of whether there is an order for relief in the principal proceedings.

Section 87(2) sets out the remedial orders that can be made. They include:

  • declaring a contract void - an order declaring the whole or part of a contract, made between the person suffering (or likely to suffer) loss and the party who has contravened the Act, void (ab initio or from a subsequent date)
  • an order varying a contract
  • an order refusing to enforce any or all of the provisions of a contract
  • an order directing the refund of money or return of property to the person suffering loss or damage
  • an order directing payment of damages in the amount of loss or damage suffered
  • an order directing the repair of goods supplied
  • an order directing supply of services
  • an order relating to an instrument creating or transferring an interest in land, directing the person to execute an instrument varying the first-mentioned instrument or terminating the operation of the first-mentioned instrument

 

Criminal penalties

Overview

Criminal remedies for cartel conduct are available (since 24 July 2009):

It is the Commonwealth Director of Public Prosecutions (CDPP) which has the power to bring criminal indictments under the Act. The ACCC will refer serious cartel matters to the CDPP.

See also:

Briefly, against a corporation a Court may impose impose a fine not exceeding the greater of (ss 45AF and 45AG):

  1. $10 million; or

  2. if the Court can determine the value of benefits obtained and reasonably attributable to the conduct, three times that value; or

  3. if value of benefits cannot be determined, 10% of the annual turnover of the corporation during the period of 12 months ending at the end of the month in which the act/omission ocurred

Against an individual involved in the contravention, the Court may impose a term of imprisonment of up to 10 years or a fine not exceeding 2,000 penalty units (or both) (s 79).

The offences contained in s 45AF and s 45AG are indictable offences.

For corporations

A corporation convicted of committing an offence by making or giving effect to a cartel provision is subject to fines not exceeding the greater of (ss 45AF and 45AG):

  1. $10 million; or
  2. if the Court can determine the value of benefits obtained and reasonably attributable to the conduct, three times that value; or
  3. if value of benefits cannot be determined, 10% of the annual turnover of the corporation during the period of 12 months ending at the end of the month in which the act/omission ocurred

The offences contained in ss 45AF and 45AG are indictable offences.

There has been one criminal corporate fine since the penalties were introduced. That was against NYK and involved admitted conduct with a substantial discount for cooperation (50%). The maximum penalty was $100m (based on 10% of turnover) and the appropriate penalty was held to be $50m before the discount for cooperation was applied:

See CDPP v Nippon Yusen Kabushiki Kaisha [2017] FCA 876

For individuals

There have not yet been any criminal convictions for cartel offences against individuals.

An individual who (s 79(1)):

  • attempts to contravene; or
  • 'aids, abets, counsels or procures a person to contravene'; or
  • 'induces, or attempts to induce, a person ... to contravene'; or
  • 'is in any way, directly or indirectly, knowingly concerned in, or party to, the contravention by a person of'; of
  • 'conspires with others to contravene'

'a cartel offence provision is 'taken to have contravened that provision and is punishable' by:

  • a term of imprisonment not exceeding 10 years; or
  • a fine not exceeding 2,000 penalty units (currently valued at $360,000); or
  • both

An individual involved in the contravention, the Court may impose a term of imprisonment of up to 10 years or a fine not exceeding 2,000 penalty units (s 79).

A penalty unit is defined in s 4AA of the Crimes Act 1914. From 2016 the penalty unit has been equivalent to $180. The next review of the value of a penalty unit is due late 2018.

Priority given to compensation

Section 79B provides that if the Court considers it appropriate to order payment of a pecuniary penalty (under s 76) or a fine (under ss 44ZZRF or 44ZZRG) and that it is appropriate to to order the defendant to pay compensation to a person suffering loss or damage as a result of the contravention and that the defendant lacks the financial resources to pay both, priority must be given to an order for compensation.

Cooperation

The ACCC currently has immunity and cooperation policies in place for cartel conduct. See cartels page.

 

Cases

See generally the main cases page (most cases involve some discussion of penalty). The sample cases below are not intended to constitute an exhaustive list.

On pecuniary penalties (general principles and application)

TPC v CSR [1990] FCA 762; (1991) ATPR 41-076
Seminal case on penalties - general principles

ACCC v Australian Abalone Pty Ltd [2007] FCA 1834
Admitted price fixing and boycott conduct - discussion of agreed penalties and mention of proposed criminal penalties

ACCC v Ticketek Pty Ltd [2011] FCA 1489 (22 December 2011)
Discussion of measure of penalties - agreed penalties

ACCC v Visa Inc [2015] FCA 1020
Admitted contravention of s 47 (exclusive dealing); pecuniary penalty

ACCC v Visy Industries Holdings Pty Limited (No 3) [2007] FCA 1617 (2 November 2007)
Admission of cartel conduct - penalties of $36m + imposed

On agreed penalties

On legality

General principles and examples

ACCC v Koyo Australia Pty Ltd [2013] FCA 105 (18 October 2013)
Admitted cartel conduct - penalties by consent

ACCC v Midland Brick Co Pty Ltd [2004] FCA 693
Price fixing - joint submission on orders - principles governing joint submissions

ACCC v NSK Australia Pty Ltd [2014] FCA 453 (13 May 2014)
Price fixing (admitted)

ACCC v QANTAS Airways Ltd (2008) ATPR 42-266; [2008] FCA 1976
Collusive conduct - SLC - Penalties - Admission of liability

ACCC v Renegade Gas Pty Ltd (trading as Supagas NSW) and Speed-E-Gas (NSW) Pty Ltd [2014] FCA 1135
Cartel conduct - agreed penalties totalling $8.3 million (contraventions admitted) - cooperation

TPC v Allied Mills Industries Pty Ltd [1981] FCA 142; (1981) 60 FLR 38
Agreed penalties

On criminal penalties

CDPP v Nippon Yusen Kabushiki Kaisha [2017] FCA 876
Admitted contravention - discount for cooperation - consideration of Crimes Act factors

 

Further resources

Reading

For research and commentary on penalties in Australia see the reading room.

For a comprehensive discussion of Australia's cartel laws, including criminal penalties, see: Beaton-Wells and Fisse, Australian Cartel Regulation: Law, Policy and Practice in an International Context (Cambridge University Press, 2011)

On measure of penalties

Michael Ferguson and Scott Meacock, 'Enforcements and Remedies: Cartel conduct: A survey of the ACCC's enforcement activity' (2014) 22 AJCCL 46

Jade Winterton, 'Examining the effectiveness of sanctions in order to deter cartel conduct in Australia' (2011) 4 Global Antitrust Review

On criminal penalties

externallinkCaron Beaton-Wells and Christine Parker, 'Justifying criminal sanctions for cartel conduct: A hard case' (2013) 1(1) Journal of Antitrust Enforcement 198

Graeme Edgerton and Luke Woodward, 'Criminalisation of cartels' in Michael Legg, Regulation, litigation and enforcement, Thomson (2011) (chapter 14)

Justice Ray Finkelstein, 'Crimes and punishments of competition law' (2011) 18 CCLJ 207

Caron Beaton-Wells and Brent Fisse,  'U.S. Policy and Practice in Pursuing Individual Accountability for Cartel Conduct: A Preliminary Critique' (2010) Antitrust Bulletin

Caron-Beaton-Wells and Fiona Haines, 'The Australian Conversion: How the Case for Cartel Criminalisation Was Made' (2010) New Journal of European Criminal Law

Julie Clarke, 'Running a Cartel? Go Directly to Jail' (May 2010) Law Institute Journal 52

Julie Clarke, The increasing criminalization of economic law – a competition law perspective, Workshop paper presented at 28th International Symposium on Economic Crime 2010, Jesus College, University of Cambridge, 9 September 2010

externallinkJustice Weinberg, 'The Current and Proposed Criminal Jurisdiction of the Federal Court' (VSC) [2008] VicJSchol 14 - A paper presented at the Federal Criminal Law Conference Sydney, Friday 5 September 2008

externallinkCaron Beaton-Wells and Brent Fisse, 'Criminal Cartels: Individual Liability and Sentencing' (June 2009) University of Melbourne Legal Studies Research Paper No 415 (SSRN)

externallinkCaron Beaton-Wells and Brent Fisse, 'The Cartel Offences: An Elemental Pathology' (June 2009) University of Melbourne Legal Studies Research Paper No. 414 (SSRN)

externallinkCaron Beaton-Wells and Fiona Haines, 'Making Cartel Conduct Criminal: A Case-Study of Ambiguity in Controlling Business Behaviour' (2009) 42 Australian and New Zealand Journal of Criminology [at SSRN]

Graeme Davidson, 'The Role of the CDPP in the Prosecution of the Proposed Cartel Offence', Competition Law Conference, Sydney, 23 May 2009

externallinkMartin P Shanahan and David K Round, 'Serious cartel conduct, criminalization and evidentiary standards: Lessons from the Coal Vend Case of 1911 in Australia' (Centre for Regulation and Market Analysis, School of Commerce, University of New South Wales)

Caron Beaton-Wells, 'The Politics of Cartel Criminalisation: A Pessimistic View from Australia' (2008) 29 European Competition Law Review

Caron Beaton-Wells, 'Criminalising Cartels: Australia’s Slow Conversion' (2008) 31 World Competition pp. 205-233

Caron Beaton-Wells and Brent Fisse, 'Criminalising Serious Cartel Conduct: Issues of Law and Policy' [2008] UMelbLRS 3

Adrian Hoel, 'Crime does not pay but hard-core cartel conduct may: Why it should be criminalised' (2008) 16 Trade Practices Law Journal 102

externallinkCaron Beaton-Wells, 'Capturing the Criminality of Hard Core Cartels: The Australian Proposal' (2007) 31(3) Melbourne University Law Review [SSRN]

externallinkBrent Fisse, 'The Australian Cartel Criminalisation Proposals: An Overview and Critique' (2007) 4(1) Competition Law Review 51-71 (SSRN)

Julie Clarke, Criminal Penalties for Contraventions of Part IV of the Trade Practices Act (2005) 10 Deakin Law Review 141

Julie Clarke and Mirko Bagaric, 'The Desirability of Criminal Penalties for Breaches of Part IV of the Trade Practices Act' (2003) 31 Australian Business Law Review 192-209

On agreed penalties

Anne Rees, 'Status quo restored: High Court approves use of agreed civil penalty submissions' (2016) 32(1) Competition and Consumer Law News 134

Rebecca Ananian-Welsh and Kate Gover, 'Before the High Court: Commonwealth v Director, Fair Work Building Industry Inspectorate: The End of Penalty Agreements in Civil Pecuniary Penalty Schemes?

Julie Clarke, The Federal Court of Australia rules against submissions on agreed penalties (Fair Work Building Industry Inspectorate / Construction, Forestry, Mining and Energy Union), e-Competitions Bulletin June 2015, Art. N° 73596

Ayman Guirguis, Richard Flitcroft and Asa Lam, 'Where to now for agreed civil penalty outcomes following the CFMEU and Barbaro decisions?' (2015) 31(5) Competition and Consumer Law News 62

Ayman Guirguis, Sarah Godden and Asa Lam, 'ACCC v Chopra: penalty submissions in the aftermath of CFMEU and Barbaro' (August 2015) 31 Competition and Consumer Law News 76

Peter Renehan and Peta Stevenson, 'Purity But at What Price: The Application of Barbaro Principles to Pecuniary Penalty Proceedings' (2015) 23(1) Compettition and Consumer Law Journal

Samantha Teong, 'Stamping out rubber-stamped penalties? Determining an appropriate judicial response to agreed penalties in civil penalty settlements' (2015) 43 Australian Business Law Review 48

Kirsten Webb and Anchal Kapur, 'No Agreement over Agreed Penalties' (2015) 31(9-10) Competition and Consumer Law News 114

Law firm commentary on High Court ruling

Allens><Linklaters: 'Significant High Court Decision on Settlement of Regulatory Proceedings' (Allens><Linklaters Client Update, 9 December 2015)

Clayton Utz, 'Negotiating agreed penalties with regulators is OK, says High Court' (9 December 2015).

Gilbert+Tobin, 'The Return of Certainty: Negotiated Resolutions in Civil Penalty Proceedings' (December 2014)

King&Wood Mallesons: Peta Stevenson, Trish Henry and Emma White, 'Australia's High Court reinstates agreed penalties' (King&Wood Mallesons, 9 December 2015)

King&Wood Mallesons: Emma White, 'High Court reinstates agreed penalties' (In Competition, 9 December 2015)

 

On damages

On class actions

Robert McGregor and Dawnie Lam, 'Airlines Class Action: Full Federal Court Overturns Strike Out Judgment: Auskay International Manufacturing and Trade Pty Ltd v Qantas Airways Limited [2010] FCAFC 6' (2011) 36(1) Air and Space Law 79-82

Kate Watts and Tova Gordon, 'Cartel class actions: Recent developments in Australia' (2010) 18 Trade Practices Law Journal 81

externallinkBrooke Dellavedova and Rebecca Gilsenan, 'Challenges in Cartel Class Actions' [2009] UNSWLawJl 52; (2009) 32(3) University of New South Wales Law Journal 1001

externallinkAlex Wynn, ‘Richard Pratt and the Visy Executive Saga and the Class Action Against Amcor' [2008] 10(5) ADR Bulletin 91

On divestiture

On private enforcement generally

 

Useful resources

The Cartel Project
Launched April 2009 this is the home page for an "interdisciplinary empirical research project [which] will investigate how and why criminalisation of serious cartel conduct has become bipartisan policy in Australia."