Cartels cave as ACCC hits ‘three a year’

The Australian 12:00am April 16, 2019

Ben Butler


Competition tsar Rod Sims says he aims to change corporate Australia’s “disappointing” attitude towards criminal cartel behaviour by running three prosecutions a year for the foreseeable future.

But in a sign the nearly decade-old criminalisation of cartel behaviour may finally be beginning to bite in the boardroom, the Australian Competition & Consumer Commission chairman said he would soon need extra funding due to a rush of applications for immunity by price-fixers keen to spill the beans on their ­conspirators.

Mr Sims told The Australian a new memorandum of understanding signed with the US Federal Bureau of Investigations would allow the American authority to share information with the ACCC, bolstering the Australian regulator’s ability to prosecute cartel crimes.

His remarks came after the ACCC, working with Federal Police, last week launched its latest criminal cartel prosecution, in which a group of businesspeople involved in money transfer are accused of manipulating the Vietnamese dong and fixing remittance fees charged to ­customers.

Including the dong manipulation case, the ACCC currently has five criminal cartel cases before the courts covering industries from investment banking (against banks and bankers involved in an ANZ share placement) to construction (against the CFMMEU and a union officer over steel fixings and scaffolding).

The regulator scored its first criminal cartel conviction in August 2017, when the Federal Court convicted Japanese shipping line NYK and fined it $25m for its role in fixing the price of car transport.

A second Japanese participant in the same cartel, K-Line, has pleaded guilty and is awaiting sentencing.

“We are rolling and I think we’ll do three a year,” Mr Sims told The Australian.

“We have a pipeline, and more importantly the skills, the connections, the techniques, for also a pipeline that will see us running out two to three for some time.

“They’ll be a mix of large and small cases and I think they’ll bring about a difference to Australia’s attitude towards cartel ­activity.”

Mr Sims said he had seen no change in corporate Australia’s attitude towards cartel conduct since it became an offence almost 10 years ago, following years of lobbying by successive ACCC chairmen and an uproar over a cardboard box cartel involving Visy and its main competitor, Amcor.

“There’s a lot of industries out there and a lot of people operating at different levels.

“It’s awfully tempting to increase your profits by illegal activities and you’ve got to weigh that against the probability of getting caught.

“So it is disappointing, but I’m much more of a glass-half-full person.

“I think that now we’ve got this program running, we’ve got the links with the AFP, which are really superb, now we’ve got that formalised link with the FBI.

“I think it’s too early yet, I think it will have an effect but I think we’ll have to roll out two to three cases for a few years before you see that effect.”

Mr Sims said cultural change could be reflected in two ways.

“One way is where you start deferring cartel conduct and the other way is where people engaging in cartel conduct seek immunity knowing there’s an increased chance they’ll get caught.

“So I suspect we’ll go through a stage where we get more immunity applications — they’ll go up before they go down.”

He said the ACCC was “continuing to see a steady increase in the number of immunity applications that we’ve got”.

“Certainly demand is exceeding supply — that is, we’ve got more immunity applications than we’ve got people to deal with them.”

He said extra ACCC funding of $8.9m a year starting next financial year, committed to by the Morrison government in December’s Mid-Year Financial and Economic Outlook, was a “welcome down-payment” but warned he would be asking whoever formed government after the May 18 election to stump up more.

“They could see we really were struggling with all the immunity applicants and the lack of resources,” he said.

He said the ACCC would make a formal approach to government for more money in the middle of the year.

“Obviously we need a few more resources so we can pursue all the immunity applications we’ve got,” he said.

“So we’re a bit resource-­constrained, but within that we’re making good progress.

“That’s a broader issue as well — that covers quite a range of activities, not just criminal cartels.”

Forming a cartel has been illegal in the US since 1890 but only became an offence in Australia on July 24, 2009.

ACCC chairman had been pushing for it to be criminalised since 2001, when then-boss Allan Fels first raised the issue. The cause was also championed by Mr Fels successor, Graeme Samuel.