Criminal cartels are the most egregious form of anti-competitive conduct. The decisions Director of Public Prosecutions (Cth) v Bingo Industries Pty Ltd and Director of Public Prosecutions (Cth) v Aussie Skips Bin Services Pty Ltd are an important reminder that criminal cartel conduct is a serious offence that will result in severe sanctions. In these cases, Wigney J imposed fines on the corporate respondents totalling $33.5 million. Additional fines were imposed on the individual respondents, each of which was sentenced to 18 months imprisonment, which resulted in hundreds of hours of community service. Both individuals were also disqualified from managing corporations for a period of five years and lost their positions as chief executive officers.
The vigorous debate on whether Australia's merger control approach is fit for purpose is over. Ignited by the ACCC's public advocacy, resulting from the view that the existing law was inadequate, the Government introduced wide-ranging changes. Parliament has enacted extensive amendments to Australian merger law, heralding a fundamentally new approach to merger evaluation in Australia. This article explains key features and explores some potential challenges the new law presents.
This article provides an in-depth discussion of the landmark High Court decision of Australian Building and Construction Commissioner v Pattinson, the overturned decision of the Full Federal Court and the reasons given by the primary judge. The article concludes by pointing to several key implications the decision has had on the assessment of civil pecuniary penalties, including the clarification that the maximum civil penalties are not just reserved for the most serious contravention of the law, and that the criminal notion of proportionality is not relevant to civil penalty analysis.
In 2024, the High Court of Australian handed down its decision in Productivity Partners Pty Ltd v Australian Competition and Consumer Commission. The case is of importance for the reason, among other reasons, that it provides clarity to the knowledge requirement of accessorial liability in the context of unconscionable conduct, and confirms that it is not necessary to prove that the accessory knew that "the conduct of the primary contravener has the character or essential quality that renders the conduct unconscionable, whether described as predation, victimisation, exploitation or something else".
Because Australia has considered the deployment of a retail central bank digital currency (rCBDC), it is important to examine its compliance with the Australian Consumer Law (ACL) because central bank money represents the bank's responsibility to depositors/holders. To do so, it is useful to consider the evolution of consumer policy, the nature of money and banknotes, account-based and tokenbased payment systems, and the "fit for purpose" requirement in Australian consumer protection law. Issues that need to be addressed include the proposed legal definition of "money", the potential implications of rCBDC as an electronic representation of the Australian dollar, and how will it comply with the fit for purpose requirement. After analysing the rCBDC proposal and existing consumer law, it is suggested that the required cryptography mechanisms use for rCBDCs does not assist it with complying with the "fit for purpose" requirement under ACL. A glossary of terms used in this article, concludes it.
This article examines the evidence base used to claim too many mergers have been allowed through in Australia, leading to higher prices for consumers, which, in turn, has been used to support calls for stronger Australian merger law. The evidence base includes growing profit margins earned by Australian firms, increasing concentration of a few firms within industries, incumbents being displaced less frequently and merger retrospective analysis showing price increases following mergers. This article argues that the evidence base is not as strong as claimed and does not indicate overly permissive merger control. In particular, the margin analysis suffers from serious reliability issues. The claimed concentration and incumbency increases are small. International merger retrospective evidence finds evidence of price increases, but tends to focus on specific industries (where data is available), on short-run price effects (and so could miss longer term quality improvements) and may not even apply to Australia, while very few Australia-specific merger retrospective analyses have been conducted.
Artificial intelligence foundation models (FMs) present a new frontier for competition and consumer protection regulation. This is a topic which has received minimal consideration in Australian legal commentary to date, despite its fast-growing importance. FMs are, and will likely increasingly become, the bedrock of many applications and services across the economy. This article explains the meaning and wider significance of FMs, and key inputs in the supply chain for FMs, as background to understanding concentration concerns in relevant markets. The present trajectory of FM development and deployment has given rise to concerns about potential monopolisation at various levels of the FM supply chain, and systemic risks arising from concentrations of power, unlawful or unethical processes and insufficient protections in respect of flawed outputs. This article analyses competition, consumer and privacy concerns arising from the development of FMs, as well as broader risks and opportunities, and makes some modest regulatory proposals.
Since 9 November2023, the use of an unfair term in a standard form "consumer contract" or "small business contract"may result in pecuniary penalties being imposed under the Australian Consumer Law or the Australian Securities and Investments Commission Act 2001 (Cth). This is a significant risk given the widespread use of standard from contracts. This risk may spread to lawyers who draft standard form contracts containing unfair terms due to accessorial liability provisions in the relevant legislation. This article examines that risk to lawyers.
This article considers how courts are likely to interpret and apply the "concerted practices" prohibition in s 45(1)(c) of the Competition and Consumer Act 2010 (Cth). This article contends that the provision will expand the spectrum of anti-competitive dealings previously restrained by the narrow interpretation of "contracts", "arrangements" and "understandings". However, the provision will not extend to the same range of conduct found to be in contravention of Art 101 of the Treaty on the Functioning of the European Union, despite the Explanatory Memorandum's (EM's) endorsement of EU jurisprudence. The article will consider the EM's formulation of "concerted practices", its implicit, yet ambitious, indication of likely contraventions and the impediments to enforcement. The article will demonstrate that the statutory scheme and common law principles will not only likely preclude Australian courts from adopting the European Court of Justice's (ECJ's) broad reading of Art 101, but that Courts should be cautious when turning to EU jurisprudence for interpretive guidance.
Bid rigging is one of four types of cartel conduct in Australia. It is considered an egregious form of anti -competitive conduct. Over the past few years, the Australian Competition and Consumer Commission (ACCC) has commenced proceedings against a number of corporate and individual respondents for engaging in bid rigging. This article focuses on a discussion of three of those decisions, namely ACCC v Delta Building Automation Pty Ltd, ACCC v Ashton Raggatt McDougall Pty Ltd and ACCC v First Class Slate Roofing Pty Ltd. The decisions, and many others in the past, play a vital role in sending a strong message to the public that the ACCC takes bid rigging seriously and will commence proceedings even in circumstances where there is an attempt, or attempt to induce others, to bid rig.
The Australian Competition and Consumer Commission's (ACCC) economywide, complementary remits for the promotion of competition and consumer protection put it in a good position to respond to emerging issues as Australia and the world navigate generational shifts in their economies and societies. The move to a low -emissions future, the continued expansion of the digital economy, the advance in new technologies such as Artificial Intelligence and an increasing demand for care and support services are creating new markets, new opportunities, and new considerations for agencies like the ACCC. Competition and consumer protection policy has a key role in ensuring these economic transitions proceed in a way that is effective, efficient and fair. This article focuses on the key areas of ACCC's compliance and enforcement work that are responsive to these shifts and challenges, and provides an update on the Commission's merger reform proposals.
This article raises a question for debate. Does the intrusion of ss 18 and 21 of the Australian Consumer Law into complex commercial settings sit uneasily with the factors which shaped commercial law over two centuries? Put another way, are these provisions reflective of norms of conduct or more accurately seen as being discordant with recognised international norms such as party autonomy and freedom of contract?
