Cartel sanctioning in Australia: A 10 year stocktake

Professor Caron Beaton-Wells and Associate Professor Julie Clarke​
The University of Melbourne, School of Law

In honour of Laura Guttuso’s scholarship and, in particular, her research relating to private enforcement of cartel laws, this paper will be a review and analysis of the Australian cartel sanctioning regime over the last decade.  It will reflect on major developments that may be regarded as progressive in the design and operation of the regime.  It will then take stock of areas in which there are weaknesses, where there remains much work to be done. Drawing on comparisons with approaches and experience in the European Union, and to a lesser extent the United States, the paper will critically examine the level of corporate fines and the methodology for their calculation, including particular issues that arise in connection with assessing criminal fines.   It will explore gaps in the regime, particularly the extent to which individuals may be sanctioned. Finally, taking inspiration from Laura’s research, the paper will touch on the substantial scope that remains for galvanising private actions as a crucial element of a sanctioning regime.