Criminalisation of cartel conduct

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This paper has sought to address some of the issues that will be presented to Courts and practitioners following the introduction of criminalised cartel behaviour. These are just some of the issues. There are others, such as jury selection, principal and accessorial liability, and defences, which I have not addressed.
Ultimately every case will turn on its own facts. However, so far as possible criminal cartel cases should be tried with consistent practice and procedure. As can be seen, it will not simply be a case of competition lawyers familiar with price-fixing cases transferring that knowledge into a criminal trial. A criminal cartel trial will require the highly specialised knowledge of such lawyers and an intricate knowledge of the criminal process not only in the Federal Court but also of the various State Courts as well. And it will not simply be a case of transferring knowledge from the first criminal cartel trial to all other criminal cartel trials. The first criminal cartel trial will be instructive – the extent to which it is instructive will vary as a result of the numerous variables I have identified. The challenge for the Courts, for
73 (1936) 55 CLR 499 at 504-5.

  1. See Explanatory Memorandum above n 36 at 41.

  2. Weiss v The Queen (2005) 224 CLR 300 at [12]ff.

  3. Weiss v The Queen (2005) 224 CLR 300 at [9] – [11].

practitioners, for the CDPP and for the ACCC will be to learn and then adapt that learning to the circumstances in each particular case. As with the development of the general criminal law, that learning process is not going to occur overnight and unlikely to be settled.

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