Criminalisation of cartel conduct



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CRIMINALISATION OF CARTEL CONDUCT




CAN COMMERCIAL COMPETITION LITIGATORS BECOME CRIMINAL DEFENCE LAWYERS?



ARE PRE-TRIAL AND TRIAL ISSUES DIFFERENT IN CRIMINAL PROCEEDINGS AND IF SO, HOW MIGHT THEY BE DEALT WITH?



Justice Michelle Gordon, Federal Court of Australia* October 2010


Cartel conduct became a criminal offence under Div 1 of Pt IVA of the Trade Practices Act 1974 (Cth)1 on 24 July 2009. Jurisdiction to try indictable cartel offences by jury was conferred on the Federal Court of Australia and on the Supreme Courts of the States and Territories2. A procedural framework for the Federal Court to exercise jurisdiction over these indictable offences was enacted in December 20093.
These reforms have created a highly specialised area of law which combines complex commercial and economic concepts of competition law with the rigours of criminal law. Significant legal and practical issues arise for the Courts, the practitioners and those charged with these cartel offences – offences which carry significant sanctions for companies and individuals, including up to 10 years imprisonment for individuals4.
Can competition lawyers be criminal defence lawyers for clients being investigated about, and then charged with, cartel offences? Do competition lawyers have the necessary knowledge and skills? How many competition lawyers, for example, are aware of, let alone understand

* I wish to thank Kate Mitchell, my associate, for her invaluable assistance with this paper.



  1. Introduced pursuant to the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009

(Cth).

  1. Section 163 of the Trade Practices Act 1974 (Cth) (TPA) and s 68 of the Judiciary Act 1903 (Cth).

  2. See Div 1A of the Federal Court of Australia Act 1976 (Cth) (FCA) as amended by the Federal Court of Australia Amendment (Criminal Jurisdiction) Act 2009 (Cth) and ss 68A, 68B and 68C of the Judiciary Act 1903 (Cth) and the amendments to the Federal Court of Australia Regulations 2004 (Cth) to deal with jurors.

  3. Section 79 of the TPA.

criminal investigative procedures, bail, the committal process, the physical elements of a cartel offence, the mental or fault elements of the cartel offence, the matters to be considered at the time of the entry of a plea, pre-trial disclosure … the list is endless. How many competition lawyers know and understand that the answers to those questions may not be uniform and why that is so?
It is beyond the scope of this paper to address all aspects of criminal law that a defence lawyer will face in a cartel prosecution. Instead, the paper seeks to examine some aspects of the criminal law to provoke thought and debate about how a competition lawyer can become a criminal defence lawyer or if they would want to. So far as possible, the paper addresses the issues in the order in which they are likely to arise in the course of a criminal prosecution.




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