Thursday, June 25, 2009
Posted by D. Daniel Sokol
ABSTRACT: The main purpose of this paper is to review the requirement of a contract, arrangement or understanding, including the amendments proposed by the Australian Competition and Consumer Commission (ACCC) to the meaning of ‘understanding’ (section 3) and the fault elements of the new cartel offences (section 4). We do not attempt here to provide a detailed analysis of the definition of a ‘cartel provision’ in s 44ZZRD. The main problems likely to be occasioned by s 44ZZRD have been discussed elsewhere and are summarised in section 2 of the paper. Examples of the problems of over-reach and uncertainty precipitated by s 44ZZRD are set out in Attachment 1 should those problems arise for discussion at the workshop.