The Commerce (Criminalisation of Cartels) Amendment Act 2019– which creates criminal offences for those who enter into or give effect to cartel provisions with the intention of price fixing, restricting output, or market allocating – has received Royal Assent and will come into force on 8 April 2021. A limited defence will be available for defendants who believe on reasonable grounds that one or more of the statutory exemptions in Part 2 of the Commerce Act applied to them (this includes statutory exemptions for collaborative activities, vertical supply contracts, and joint buying and promotion agreements).
Under the new law, natural persons convicted of criminal cartel conduct can face a term of imprisonment of 7 years, or a fine not exceeding $500,000, or both. Corporate defendants can face a fine being the greater of $10 million, three times the value of any commercial gain resulting from the contravention, or if that cannot be ascertained, then 10 percent of its turnover in the each accounting period in which the contravention occurred.
The offence will be a “category 3” offence under the Criminal Procedure Act 2011, with trials to take place in the District Court(unless a High Court judge determines it should be heard in that Court) before a judge or jury. Prosecutions of these offences will be effected by a panel of specifically lawyers appointed by the Solicitor-General.