The Cartel Offences: An Elemental Pathology

Abstract

The statutory regime that will apply to cartel conduct in Australia from 2009 will be highly complex. Notwithstanding several revisions to the Bill during its gestation, many of the issues have not been addressed and, in general, there is considerable uncertainty as to how the new provisions will be interpreted and applied. The principal purpose of this paper is to review the requirement of a contract, arrangement or understanding, including the amendments proposed by the Australian Competition and Consumer Commission to the meaning of ‘understanding’ and the fault elements of the cartel offences. In relation to the former, the paper is highly critical of the ACCC proposals and suggests a more helpful approach is to map out the conceptual boundaries of an ‘understanding’ by comparing the approaches taken under US and EC law. In relation to the latter, the paper concludes that the main fault elements that apply - intention, knowledge and belief - raise numerous difficult issues, that the process of inference from circumstances will be problematic and that the challenges in formulating jury directions are formidable.