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BFCSA: ACCC's criminal cartel cases seek jail time, big fines from companies. Starting with Big Banks?

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ACCC's criminal cartel cases seek jail time, big fines from companies

Australian Financial Review Jan 8 2018 11:00 PM

Patrick Durkin


EXCLUSIVE  The competition watchdog is set to launch its first criminal cartel cases against a series of high-profile Australian companies seeking multimillion-dollar fines and up to 10 years' jail for senior executives, Australian Competition and Consumer Commission chairman Rod Sims has warned.

"2018 will be a very big turning point for cartel enforcement and cartel deterrence," Mr Sims told The Australian Financial Review.

"We will very likely have three to four domestic-based criminal cartel actions in 2018. It is very unfortunate we need to take action against individuals but I think that is what is needed. We have had a criminal cartel unit going for a couple of years and it is starting to pay dividends."

Under the criminal cartel laws, executives can face jail terms of up to 10 years if found guilty and company fines of up to 10 per cent of their turnover or three times the profit gained.

Mr Sims refused to reveal which companies or even sectors are implicated but said "they are domestic Australian companies of varying sizes, some are large but they are all important companies".

The ACCC established a dedicated team to uncover cartels when the laws became criminal offences in 2009, after the late billionaire Richard Pratt and his Visy group were fined a record $36 million in 2007 for price fixing.

The ACCC secured its first criminal case under the laws in 2017 against Japanese shipping company NYK, which was fined $25 million, and has launched another case against Japanese shipping company K-Line, however Mr Sims said they were "foreign companies and don't involve individuals".

The ACCC released a report in 2016 revealing that it was examining cartel behaviour among buyers in Australia's cattle market, after its interim report into the sector found "serious shortcomings" in the way that cattle are bought, sold and graded.

Bank report 'surprising'

Mr Sims also revealed the ACCC is set to publish an explosive report on the eve of the banking royal commission, after shifting through thousands of internal documents to examine the banks' home loan pricing and whether they have passed the government's $6.2 billion bank tax on to customers. It comes as the Productivity Commission is also set to publish its draft report into competition in the financial system.

"We were asked by the Treasurer to do an inquiry much like we are doing with gas and electricity ... to get prices down and the market working as it should, " Mr Sims said.

"We will be bringing out a draft report in February or March which will provide more transparency on how the banks make their interest rate decisions and how the market structure and the level of competition in the banking sector impacts those decisions ... that will be quite an important report ... there are some surprises."

Media and retail mergers

Mr Sims is also expecting a wave of mergers to be announced this year, particularly in the media sector following new ownership laws.

"I think it will be quite a busy year on the mergers front, you have got the new media laws coming in, we do expect quite a lot of mergers to be happening, we had quite a lot in 2017 and we try to pre-assess 90 per cent of the mergers and focus our resources on the ones that cause the largest competition concerns," Mr Sims said.

"We opposed oOh!media and APNOutdoor, South32, Camp Australia and JAG but I think if you went out in the community away from the business sector they think we don't oppose enough," he said. "We think we have the balance right but that's the criticism we hear all the time."

He said the emergence of Facebook and Google in media and Amazon in the retail sector meant the ACCC will need to remain "open minded" about mergers between traditional players that would previously have been blocked.

"We are always open minded," Mr Sims said. "We have been taking that into account for some time. We have let a couple of media mergers go through but that doesn't mean you let Fairfax Media and News merge or Coles and Woolworths merge."

Impact of Facebook, Google and Amazon

"We understand the technology challenge ... we have been alive to online retail for some time, keep in mind Google and Facebook are very big businesses in Australia, Amazon is still a new entrant in Australia."

Mr Sims said it remains unclear following the decision for Tabcorp to take their Tatts merger directly to the Australian Competition Tribunal whether other big mergers such as BP's blocked takeover of Woolworths service stations will try to seek approval in the courts.

The ACCC is also set for big decisions on Pacific National's purchase of Aurizon's Queensland Intermodal business, the proposed acquisition of Murray Goulburn by Canadian dairy giant Saputo and French hotelier Accor's proposed takeover of the Mantra Group.


"The interesting issue is will companies continue to take the informal path [for ACCC authorisation of mergers] or will that wind down as more companies go the formal route," Mr Sims said.

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