The Australian Competition and Consumer Commission today issued guidelines on how it will approach its investigation of cartels following amendments to the law introducing criminal sanctions for serious cartel conduct.
The release coincides with the signing of a memorandum of understanding with the Commonwealth Director of Public Prosecutions setting out how the ACCC and CDPP will work together in relation to the prosecution of cartel offences.
Cartel conduct involves agreements between competitors to fix prices, restrict outputs, allocate customers or rig bids. They have been prohibited for more than 30 years with significant penalties and civil remedies. For the first time, participation in cartel arrangements will now also come with the additional price tag of possible criminal conviction and imprisonment for up to 10 years.
The introduction of a criminal cartel offence raises a number of questions such as how the ACCC will investigate alleged cartel arrangements and when it will refer to the CDPP for possible criminal prosecution. The guidelines address these questions and more.
"The ACCC is not interested in prosecuting minor matters under the new criminal offence," ACCC Chairman, Graeme Samuel, said today. "It is however of the view that, wherever possible, serious cartel conduct should be prosecuted criminally. In those serious matters, it will not trade away the possibility of criminal prosecution in return for agreement to settle with civil remedies.
"With 10 days to the new laws coming into effect, the countdown has started. Individuals who choose to continue to engage in serious cartel conduct after July 24 2009 run the risk of being caught under the new laws and the prospect of significant gaol time.
"For some people it will be a time to reflect whether they maintain their involvement in a cartel and risk imprisonment or draw a line in the sand and stop it now. Most definitely for others, with the stakes raised high, it will be a time to expose their partners in crime under the ACCC's immunity policy.
"Lawyers who concern themselves with trying to second-guess the ACCC about the line between the possibility of a gaol term or civil penalty are missing the point.
"They should simply advise their clients not to participate in any cartel. You do not fix prices, you do not rig bids, you do not allocate customers. This is the kind of conduct which could expose your client to gaol. The ACCC will use the full force of the law to bring you to account, either financially or through incarceration."
Other amendments enhance the ACCC's capacity to conduct search warrants and enable telephone interception to be used for investigation of the cartel offence.
"The new investigative tools and significant penalties for cartel conduct point to one conclusion – there has never been a better time to stop cartel conduct," Mr Samuel said.
The guidelines, MOU and related information are available on the ACCC website.