The anti-cartel legislation that we described in our ealert of
23 June 2009 has now commenced operation and the ACCC has
guidelines as to how it will approach the prosecution of
cartels. The ACCC has also signed an
MOU with the Commonwealth Director of Public Prosecutions
(CDPP) as to how the two agencies propose to work together in
prosecutions. Whilst the ACCC has said it will take the view that
serious cartel conduct will warrant criminal prosecution rather
than the imposition of civil penalties, it has not sought to define
what it means by this, to the contrary, advising us that:
"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." (Source – ACCC news release 14
There is a non-exhaustive list of matters in the MOU that seek
to indicate what will constitute serious cartel conduct, but the
message is that these will not necessarily bind the ACCC in its
decision whether to seek criminal penalties, so the time to stop
engaging in cartel conduct is now. The other relevant ACCC document
to be considered in these cases is of course the ACCC
immunity policy for cartel conduct, although it must be noted
that whilst the ACCC will be deciding whether to apply this policy
in civil penalty cases, the MOU provides that the decision whether
to grant immunity from criminal prosecution will rest with the CDPP
to decide in accordance with the Prosecution Policy of the
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