Proving Civil Cartel Conduct …

Jarryd Cox

Australian Journal of Competition and Consumer Law

Jarryd Cox, ‘Proving Civil Cartel Conduct: Evidentiary Issues, Commitment and the Effect of the Concerted Practices Prohibition’ (2021) 29(3) Australian Journal of Competition and Consumer Law 193

Abstract

This article reviews the state of civil cartel liability in Australia with a focus on the difficulties faced by the Australian Competition and Consumer Commission when prosecuting cartel conduct. The greatest stumbling block faced by the Commission when prosecuting civil cartel conduct is its substantial evidentiary burden. In comparison to other jurisdictions (United States and Europe), this evidentiary threshold is arbitrarily elevated due to proof of the element of "commitment" being a necessary condition of successfully prosecuting cartel conduct. The introduction of a concerted practices prohibition in the 2017 amendments to the Competition and Consumer Act 2010 (Cth) is expected to aid the Commission in reducing anti-competitive behaviour. This article recommends that the Australian cartel laws be further amended for the purpose of establishing "commitment" as a sufficient but not necessary element of cartel liability.