'No bright lines' between criminal and civil cartel enforcement decisions, says top Australian official

21 August 2024
By Ryan Cropp

Australia’s competition watchdog remains committed to bringing cartel cases that meet a criminal standard, according to a senior official at the agency.

Speaking at a conference* in Sydney today, Liza Carver said that while there were “no bright lines” guiding the regulator’s decision to pursue civil or criminal-cartel enforcement, the latter had a much stronger deterrent effect.

“Fundamentally, we're in the game of compliance and deterrence, and we believe deeply … about the deterrent effect of the threat of a custodial sentence,” said Carver, an official with the Australian Competition & Consumer Commission, or ACCC.

The ACCC Commissioner said the decision to bring criminal rather than civil cases often came down to the quality of evidence that the watchdog had before it.

“We have to think deeply about the evidence that we've been able to gather,” Carver said. “Have we got evidence that would be sufficient for a criminal standard?”

Carver said choosing whether to bring civil or criminal cases was always a “decision point in an investigative process.”

In addition to bringing civil cartel matters, the ACCC has had the ability to refer criminal cartel cases to the country’s federal prosecutor since 2009.

Over recent years, federal prosecutors have secured several criminal-cartel convictions based on investigations carried out by the ACCC. However, both the ACCC and prosecutors have also suffered high-profile setbacks, including not-guilty jury verdicts in a criminal-cartel trial.

Speaking on an earlier panel, judge Michael Wigney said it was the responsibility of prosecutors not to overcomplicate cartel matters it brought to court.

“In cartel cases, it really is incumbent on the prosecution, as a matter of common sense, to just keep it simple,” Wigney said.

“Keep it simple, stupid,” he said.

Carver said coming up with appropriate cartel penalties was “not rocket science”.

“The moral wrong must be capable of being understood,” she said.

*ABA Antitrust Global Seminar Series: Sydney, Aug. 21, 2024.

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