The Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2009 has been passed by Parliament.
The Bill establishes criminal penalties for serious cartel conduct that was already prohibited under existing civil prohibitions of the Trade Practices Act.
The key amendments in this Bill:
- establish criminal penalties for serious cartel conduct, with maximum criminal penalties for individuals, of a 10-year jail term and/or a fine of $220,000 and for corporations, of fines mirroring the existing maximum pecuniary penalties for breaches of the civil penalty provisions (the greater of $10 million, or three times the benefit obtained if this can be determined, or otherwise 10 per cent of annual turnover);
- provide parallel civil provisions for serious cartel conduct;
- provide exemptions from the criminal and parallel civil prohibitions on cartel conduct, including if a cartel provision in a contract is for the purposes of a joint venture, and the joint venture is for the production and/or supply of goods or services;
- enable individuals to be held directly liable for criminal and civil prohibitions in relation to cartel conduct through amendments to the ancillary liability provisions, as well as under mirror offences and civil penalties contained in the Schedule version of Part IV of the Trade Practices Act;
The joint venture exception was clarified to provide exceptions for joint venture parties that intend and reasonably believe that a transaction was a contract within the scope of the joint venture exceptions created by the Bill, but as a matter of law failed to make a contract.
Cartel criminal offences and parallel civil penalty provisions will commence 28 days after assent