Cartels – time for clarity

Kon Stellios

With the Australian Competition Policy Review underway and as the Australian Competition and Consumer Commission seeks to expand the information disclosure prohibitions from the financial services industry to the Australian economy as a whole, it is timely to review the current state of Australia's cartel laws. The paper explores the policy justifications underpinning the, currently limited, prohibitions on information disclosure and their expansion to the broader economy. The authors conclude that there are many pro-competitive reasons for and effects of information disclosure, such that the information disclosure prohibitions have the distinct possibility of stifling competitive conduct. Further, the kinds of information disclosure most likely to be anti-competitive are the types of conduct likely to be captured within the broader cartel prohibitions in any event. More broadly, the authors explore the existing Australian cartel prohibitions and conclude that these provisions have failed to achieve their objective of clarity and simplicity, with the recent decisions in the ANZ and Flight Centre cases demonstrating this failing.