Caron Beaton-Wells

Making Cartel Conduct Criminal: A Case-Study of Ambiguity in Controlling Business Behaviour

Abstract This article explores the regulation of cartel conduct in Australia focusing, in particular, on the recent decision to criminalise so-called ‘hard-core’ cartels. It illuminates three interdependent ambiguities in regulating such conduct: economic, moral and legal. The case study is drawn on to highlight the challenges for the criminal law in attempting to resolve such ambiguities or tensions as they arise in the regulation of business behaviour generally.We argue that such challenges exist because the ambiguities reflect broader shifts taking place on an ongoing basis in economic policy, political ideology and social norms in Australian society.

The Australian Conversion: How the Case for Cartel Criminalisation Was Made

The phenomenon of cartel criminalisation provides a window on dynamics in society at large. In particular, it exemplifies the political risk that governments face in wrestling with conflicting economic and social imperatives. This article uses the experience in Australia to demonstrate how the political risk inherent in cartel criminalisation may be overcome. Alive to public ambivalence over neoliberal market-based reforms, the Australian competition authority and government downplayed the economic rationale for cartel criminalisation and capitalised instead on the publics need for certainty and security in the social order. This was done by playing up the role of the government as protector of the economy, exploiting public scepticism towards globalisation and distrust of big business and invoking populist egalitarian sentiment. The strategy has been effective in the short term. However, challenges still loom in the enforcement of the cartel regime that may yet expose the fallacies in the case that was made for criminalisation.

U.S. Policy and Practice in Pursuing Individual Accountability for Cartel Conduct: A Preliminary Critique

The extent of individual accountability for cartel conduct in the United States, as elsewhere, may be more limited than some might have one believe. The chances are that individuals responsible for cartel offenses will not be prosecuted and that corporate fines will not result in internal disciplinary action being taken against them. Yet few would disagree with the principle that all who are responsible for serious cartel conduct should be held accountable. Further empirical investigation is required in order to test fully the extent to which the DOJs approach to anticartel enforcement achieves individual accountability. Such an investigation is warranted with regard to the influence of the U.S. model around the world and the strength of advocacy by the U.S. authorities as to its merits.

Problematising supermarket–supplier relations: dual perspectives of competition and fairness

ABSTRACT The power asymmetry between major supermarket chains and suppliers in Australia and abroad has been analysed largely through an economic lens, focused predominantly on consumer prices. This article takes a wider stance, considering both the economic and the social perspectives that infuse debates relating to the supermarket treatment of their suppliers. The two perspectives are not, as they first appear, disconnected or in conflict. Rather, as with many socio-economic interactions, they are connected and interdependent. Applying a problematisation analysis, we explore the ways in which issues relating to the imbalance in bargaining power between major supermarkets and suppliers have been framed in policy dialogue, and then examine the implications of such framing for regulatory responses. On our analysis, the problem that this imbalance is seen to pose has dimensions of both competition and fairness. It is thus a problem that can be tackled by appealing to the platforms of both the left and right of politics. A dual response also facilitates effective political risk management. While a neoliberal approach allows government to be seen as promoting competition to maximise efficiencies and consumer welfare, tough measures on socially unacceptable behaviour enables government to align with important social-cultural values.

Substance and process in competition law and enforcement. Why we should care if it’s not fair

The hallmark of an effective law is that it is obeyed by those subject to it. A law that prohibits certain types of conduct is not effective if it does not influence behaviour to conform with it.1 Moreover, law enforcement authorities are limited in their capacity and resources and rely on most of those who are subject to the law to comply voluntarily with it most of the time. Given this, it is essential to understand the factors that influence compliance with the law. A long-standing theory on compliance is that behaviour is most effectively influenced by increasing the likelihood of detection and punishment of wrongdoing and threatening the application of severe sanctions for transgressions. This is the well-known rational choice or classical deterrence paradigm that permeates much public policy thinking, particularly in the criminal justice realm,2 but also in the realm of business regulation,3 including competition and consumer regulation.4 In the latter context, it is a paradigm that has spawned a substantial body of