Two Steps Forward, Four Steps Back: Threats Facing Australian Criminal Cartel Convictions after Country Care and ANZ
Alan Zheng
Australian Journal of Competition and Consumer Law
Alan Zheng, ‘Two Steps Forward, Four Steps Back: Threats Facing Australian Criminal Cartel Convictions after Country Care and ANZ’ (2023) 31(1) Australian Journal of Competition and Consumer Law 29
Abstract
The history of antitrust is unified by a common thread that cartels are, as Adam Smith saw them – a “conspiracy against the public” and in the late Justice Antonin Scalia's words, “the supreme evil of Antitrust”. However, their criminalisation is a relatively modern chapter in that story. Nearly two decades on from the Dawson Review's broad and imprecise recommendation that there should criminal sanctions for “serious” cartel behaviour, there are now outcomes from two contested criminal cartel cases in Commonwealth Director of Public Prosecutions v The Country Care Group Pty Ltd and Director of Public Prosecutions (Cth) v Citigroup Global Markets Australia Pty Ltd. This article identifies and evaluates a substantial set of legislative, forensic and policy-based obstacles, as evidenced in both cases, which will complicate criminal cartel convictions in Australia going forward.