Criminal cartel laws now live in law, but not in print
Posted by Julie Clarke on 24 July 2009
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 to include price-fixing (this replaces s 45A which has been repealed), bid-rigging, restricting outputs and market division between competitors.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.