The Australian Conversion: How the Case for Cartel Criminalisation Was Made
| DOI | 10.1177/203228441000100408 |
| Published date | 01 December 2010 |
| Date | 01 December 2010 |
| Subject Matter | Article |
New Journal of Eur opean Crimina l Law, Vol. 1, Issue 4, 2010 499
tHe AUstRALIAn ConveRsIon:
How tHe CAse FoR CARteL
CRIMInALIsAtIon wAs MADe
C B-W*
and F H**
ABSTRACT
e phenome non of cartel criminalisation pro vides a window on dynamics in society
at large. In par ticular, it exemplie s the political risk that governments face in wrestling
with conicting econ omic and social imperati ves. is article uses the experience in
Australia to de monstrate how the political risk inherent in carte l criminalisation may
be overcome . Alive to public ambivalence over neoliberal market-based reforms , the
Australian competiti on authority and government downplayed the economic rationa le
for cartel criminalisation and capitalised instea d on the public’s need for certainty and
security i n the social order. is was done by playing up the role of the go vernment as
protector of the economy, e xploiting public sc epticism towards globalisation and
distrus t of big bu siness and invoking populist egalita rian sentiment. e strategy h as
been e ective in th e short te rm. However, ch allenges still loom in the enforcement of
the cartel regime that may yet expose the fallacies in the case that was m ade f or
criminalisation.
* Associate Profes sor, Melbourne Law School, e Universit y of Melbourne.
** Associate Professor, School of Social and Politica l Scienc es, e Univer sity of Melbou rne. e
authors ar e grateful to Janett e Nankivel l and Kat hryn Tomasic for research assistance. e usual
disclaim ers apply.
Caron Beaton-Wells and Fiona Ha ines
500 Intersentia
1. INTRODUCTION
In 2009 Australia joined the growing list of countries with criminal laws and sanctions
directed at serious for ms of cartel conduct.1 Cartel crim inalisation is attract ing
increasing academic interest (as evidenced by the dedicated series in thi s Journal),2 in
turn reect ing the priority given to anti-ca rtel enforcement generally over the last 10
to 15 yea rs by governments and enforcement agencies.3 However, much of the dialogue
on the subject to date has involved an elite ‘epistemic community ’,4 comprisi ng
primarily competition law ocials, practitioners, and other commentators. In keeping
with this trend, a n earlier article described the Austra lian ‘conversion’ to cartel
crimina lisation as ‘slow’, there being limited e mpirical evidence t hat it had engaged
constituencies beyond the government, t he competition authority and the legal
profession.5
Amongst this narrow exper t community, much of the debate has focused on what
might seem to external audiences to b e technica l issues regarding the nature a nd
eects of car tel conduct.6 In contrast, relatively lit tle attention has been paid thus far
to the presentat ion of the crimi nalisation reform in the broader political sphere and
from the perspective of the general public. is is despite the fact that cri minalisation
represents a signi cant shi in norms associated with economic policymaking. at
is, behaviour seen to d amage the economy is now not merely illegal, but crim inal. As
1 e new cartel regime was introduced by the Trade Practice s Amendme nt (Cartel Conduc t and
Other Measure s) Act 2009 (Cth). For an explanation of the leg islative changes a nd the key technical
debates that attended the process of legisl ative design, s ee C Beaton-Wells, ‘Australia’s Criminalisation
of Ca rtels: Wi ll It Be Contag ious?’ in e D evelopment of Competiti on Law: Global Pe rspectives,
Academic Societ y for Competition Law Ser ies (Edward Elgar, 2011) (forthcoming).
2 See also K J Cseres, M P Schin kel and F O W Vogelaar (eds), Crimi nalization of Competition Law
Enforcement: Economic and Legal Implicat ions for th e EU Member States (Edwa rd Elgar, 20 06); C
Beaton-Wells and A E zrachi (eds), Criminali sing Cartels: Critical Studie s of an Internat ional
Regulatory Mo vement (Hart Publi shing, 2011).
3 On trends in anti-c artel enforcement over the l ast decade, see Inter national Competit ion Network,
‘Trends and Developments in C artel Enforceme nt’ (Paper presente d at the 9 th Annual ICN
Conference, Ista nbul, Turkey, 29 April 2010) 7.
4 F v an Waarden and M D rahos, ‘Courts and (Episte mic) C ommunities in the Convergence of
Competition Polic ies’ (2002) 9 Journal of European Publi c Policy 913; S Wilks, ‘Competit ion Policy’
in W Grant, D Coen and G Wilson (eds), e Oxford Handbook of Business and Government (Oxford
University Press , 2010) 730, 732.
5 See C Beaton-Wells, ‘Crimina lising Cartels: Australia’s Slow Conversion’ (200 8) 31 World
Competition: L aw & Economics Review 2 05.
6 Much of the debate has focuse d, for exa mple, on quant ifying the ‘overcharges’ result ing from
cartels, the s cale of monetary sanctions r equired to eectively deter such conduct, the impact of
crimina lisation on immunity policie s, and the complex issues surrounding the lega l design of cartel
oences. For an insight into the degree of techni cality associate d with the Australian leg islation, see
C Beaton-Wells and B Fisse, Australian Cartel Regulatio n: Law, Policy and Practice in an Int ernational
Context (Cambrid ge University Press, 2011).
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