Criminal cartel laws now live in law, but not in print

Today marks the first day the long-awaited criminal cartel laws enter force in Australia.  The news laws create new civil and criminal offences for engaging in cartel conduct.  Cartel participants now risk up to 10 years jail for making or giving effect to cartel provisions, defined (in s 44ZZRD(2)!) to include price-fixing (this replaces s 45A which has been repealed), bid-rigging, restricting outputs and market division between competitors.  Despite the flaws in the drafting of the laws, it is appropriate to treat cartels as criminal and the law should be welcomed. It has been described by former ACCC Chairman as a ‘red letter day for competition law‘.

However, despite the very serious consequences now associated with the new law, Treasury has not produced a consolidated version of the Act – so nobody can clearly see how the new law operates without flicking between two different – and highly complex – documents.  This is unacceptable.  It is normal for legislative consolidations to lag behind new legislation where the amendments are trivial or incidental to amendments made to other acts.  But this is a monumental and complex change and it is not as if Treasury has been caught off guard.  The legislation passed on 16 June.  It received Royal Assent on 26 June.  Since then it has had 28 days for someone among its hundreds of staff to put together a consolidated Act prior to the criminal laws kicking in.  Nobody has bothered.  ComLaw did create a new consolidation on 1 July (AFTER the cartel act received assent) but it didn’t include the new law!

I did it in a few hours – I didn’t get much sleep on Tuesday night compiling the ‘unofficial’ consolidation, but it wasn’t a difficult task. Why?  I’m teaching the new law to my undergraduate students in a couple of weeks and wanted to see the new additions/amendments in context in order to ensure I was capturing the full raft of changes – and it was a useful exercise.  But the only consequence for me of not doing it would be to deliver a sub-standard lecture.  Although my students may consider this a particularly serious and undesirable outcome, for business and lawyers the consquences are clearly much more serious.  It is unacceptable that there is no ‘official’ means of viewing the new law, particularly given the serious – criminal – nature of the consequences for failing to adhere (for which ignorance of the law is no excuse).

This is not the only area in which Treasury has been lax in updating material for the public.  It took well over a week for the Treasury website to acknowledge Dr Craig Emerson MP as the new minister for Competition and Consumer Affairs (this change should take no more than a few minutes).  And his web site is still part of the ‘Ministers for Innovation, Industry, Science and Research’ website (Emerson is also Minister for Small Business, Independent Contractors and the Service Economy; Minister Assisting the Finance Minister on Deregulation‘) rather than Treasury Ministers portal (all the other Treasury Ministers have web sites hosted by Treasury and their quality is far superior).

At least the main page of the site now lists his various ministerial responsibilities – until recently nobody would have guessed from the web site that he had anything to do with Competition policy.  When I complained about this, Webhelp from the Department of Innovation, Industry, Science and Research, informed me (on 3 July) that the page reflecting Minister Emerson’s ministerial responsibilities had been updated (http://minister.innovation.gov.au/emerson/Pages/ministerialresponsibilities.aspx) and that the rest of the website was in the process of being updated and ‘should’ be completed shortly.  It’s not clear whether it has been ‘completed’ or whether they are still at work.  If it is ‘completed, then the reference to the Competition Ministry still remains in the shadows of a very large and overbearing ‘header’ which proclaims that this page is for Ministers of Innovation, Industry, Science and Research .  It is not terribly comforting for those hoping for a strong government focus on competition policy.

Treasury has been very keen to release reports, establish inquiries, enact complex new laws in relation to competition policy (for some of that, at least, they are to be commended) but needs to improve its act when it comes to dissemination of information about new laws and policy to the public – in particular, those subject to the new criminal laws have a right to be able to view consolidated legislation which clearly sets out their obligations.

Trade Practices Act – Time to Split it Up?

The Trade Practices Act (TPA) is too big and too complicated. The Government has introduced phase I of their two-phase plan to implement a new Australian Consumer Law which will bulk up the Act even further (the Bill alone runs to 84 pages).  The adds to the additional 90 pages of statutory text generated by the recent passage of the criminal cartel act.  It cannot go on … the annotated acts are bursting at their seems.

So what can be done to stem the flow of dense legislative supplements to what was once a neat little Act (the original 1974 Act comprised a little over 38,000 words of text; the current consolidation contains more than 305,000 words)?  The answer is probably nothing.  It is unlikely there will be any substantive legislative repeals or genuine attempts at simplification, although this would be desirable, and the problem is likely to get worse with current inquiries into unconscionable conduct, creeping acquisitions and the meaning of ‘understanding’ in part IV of the Act likely to generate more legislative content in the near future.  Another answer is needed.

Chris Bowen MP, when he was then Minister for Competition Policy and Consumer Affairs, announced that the Government would change the name of the TPA to the ‘Australian Competition and Consumer Act’ while in the process of implementing the Australian Consumer Law.  It was though that somehow this would ‘better reflect its purposes of promoting competition and empowering consumers’.  It is believed the Govenment is still intent on this name change.  Although, as a bit of a traditionalist, it hurts me to part with the term ‘Trade Practices Act’, of which I am now very fond, the proposed name change might present an opporunity.  While in the process of changing the Act’s name why not split it up?  Let’s divide it into a consumer act (‘Australian Consumer Act’ perhaps) and a competition act (‘Australian Competition Act’?).  These are two separate fields of law and policy (even if there may be some overlapping objectives) – they need not be married together in this legislative jungle.

While we’re in the process of splitting up the Act let’s also re-number it.  A multitude of additions and alterations over the years has led to an absurd numbering system.  The last part of the Act is Part XIII.  You might deduce from this that the Act has 13 parts.  You would be wrong; it in fact has 28 parts and a schedule.  Parts include IIIAA, XIAA, XIB etc.  All very logical!  The section numbering is even better. The new cartel laws begin with section 44ZZRA and end with section 44ZZRV.  Why?  Because the government wanted to slip them in between sections 44ZZR and 45.  Again, very logical and easy to follow for business trying to adhere to the law – and this is not the worst of it. This bizarre numbering is scattered throughout.  We have s 51ACAA (I kid you not), s 44AAGA, s 75AZQ, s 87CAA, s 95AZEA (seriously!), s 10.01 (yes, in Part X the numbering system completely changes – we go from s 119 to s 10.01 – 10.91 then we jump to s 150A at the start of Part XIA – there are no sections 120-150 in the Act) and my personal favorite, s 151BUAAA.  It is simply absurd.

So, with the re-naming and and of the Act we can also begin a re-numbering system.  Nobody really loves s 151BUAAA or will be sorry to see it go.  Lets put what we want in the Act (or Acts), then start the renumbering of parts and sections from scratch.  No doubt future amendments will mess this up a little, but the Act cannot continue on it’s current numbering trajectory.

There are, of course, more serious issues than poor structure and numbering of the Act.  It is highly complex and, as a result, inaccessible for many of those parties to whom it is directed (consumers and business).  But a simplified structure (one that clearly separates consumer and competition legislation and policy) and a logical numbering system would, at the very least, be a good start.

Consolidated TPA

Treasury hasn’t produced one and there’s no current consolidation at ComLaw, so in light of the fact that the criminal cartel laws (and the new civil cartel laws) kick into operation tomorrow I have prepared an unofficial consolidation.  The process of reviewing the entire Act has reminded me what bad shape it is in – I thought the numbering of the new cartel provisions was bad, but I’ve been reminded that the numbering scheme is simply consistent (and in some respects simpler) than most of the rest of the Act …

Note: A current consolidation is now also available at ComLaw and AustLII

Criminal Cartel Bill receives Royal Assent

The Criminal Cartel Bill received Royal Assent on 26 June 2009 – it is now an Act (Act no 59 of 2009) and the cartel provisions will enter force after 28 days (24 July).

The ACCC has also released a Revised Immunity Policy for Cartel Conduct and associated interpretation guidelines. They will come into operation when the new cartel provisions come into force on 24 July. In addition to setting out the process for obtaining immunity for civil cartel conduct the new policy sets out the procedures for obtaining immunity in relation to criminal cartel offences, including the role of the Commonwealth Director of Public Prosecutions (CDPP) (see, in particular, Annexure B of the Prosecution Policy of the Commonwealth).