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The evolution of penalties, recent successes of the ACCC and a glimpse of the future

Evans, P.D. (2018) The evolution of penalties, recent successes of the ACCC and a glimpse of the future. Australian Journal of Competition and Consumer Law, 26 (3). pp. 198-212.

Abstract

However, "intuitive synthesis" does not mean that the process of setting a penalty is devoid of principle. Far from it. An assessment of the applicable penalty for any contravention must be made on the basis of facts found upon admissible evidence led, and must engage, properly, with the provisions of the legislation creating both the contravention and the penalty. Increases in available penalties under the Competition and Consumer Act 2010 (Cth) (CCA) have, due to the relatively long gestation of Pt IV cases in particular, begun to manifest themselves and a continuously developing body of both first instance and appellate law has been applied to more complex and novel contravening conduct.

In that, the Australian Competition and Consumer Commission (ACCC) has been on something of a run of success over the last 12 months, in particular in the enforcement of the competition provisions of the CCA, where the finalisation of a number of long-running enforcement proceedings has resulted in significant pecuniary penalties, large enough to hopefully dissuade similar contraventions in the future. Moreover, the respective courts have clearly foreshadowed the prospect of escalating penalties if the examples set are not heeded.

The aggregate penalties against the principal offenders in four cases over the last 12 months, while less than sought by the ACCC (in some instances by nearly an order of magnitude), are individually and collectively significant in the developing penalty jurisdiction under the CCA. The yield of $82 million to the Treasury (plus, of course, costs orders) also made a handy contribution of offsetting the ACCC/AER's $180 million annual operating costs.

This note will canvass the consolidation of penalty principles, specifically in relation to competition rather than consumer contraventions, over the last 12 months, and the lessons for future penalty hearings as the ACCC continues what some would no doubt characterise as a quite aggressive and wide-ranging enforcement campaign.

Publication Type: Journal Article
Murdoch Affiliation: School of Law
Publisher: Thomson Reuters
Publishers Website: https://legal.thomsonreuters.com.au/
URI: http://researchrepository.murdoch.edu.au/id/eprint/42257
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