The Desirability of Criminal Penalties for Breaches of Part IV of the Trade Practices Act

Julie Clarke and Mirko Bagaric
(2003) 31 Australian Business Law Review 192-209

Abstract

Following the introduction of criminal sanctions, including jail terms, for hard core cartelisation in the United Kingdom, the Dawson Review has recently recommended that criminal penalties be introduced in Australia for individuals and corporations found to have engaged in hard core cartels. A number of reasons have been advanced to justify the introduction of criminal sanctions for this type of conduct, the most common of which are that it would bring Australia in line with other competition regimes and that criminal sanctions are more likely to provide an effective deterrent. This article evaluates those reasons, and others, to determine whether there is any adequate justification for the proposed criminal regime.

The Dawson Report, released by the federal Government in April, recommended significant change to merger regulation in Australia. While retaining the substantial lessening of competition test, the Report calls for change to the merger clearance and authorisation processes. The recommendations have received the support of the Government and big business, but have attracted criticism from the ACCC, small business and consumer groups. This paper will critically discuss the recommendations in light of the public submissions made to the Review.

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