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Published online by Cambridge University Press: 24 January 2025
In Australian competition law, the notion of collusion between competitors is encapsulated in the concepts of ‘contract’, ‘arrangement’ and ‘understanding’ under the Trade Practices Act 1974 (Cth) (‘TPA’). These concepts have been integral to the civil prohibitions on cartel conduct under s 45(2) of the TPA since 1974. The same concepts are used in the new cartel offences and civil per se prohibitions which took effect in July 2009 as a result of amendments made by the Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2008 (Cth).
In 2007, the Australian Competition and Consumer Commission (‘ACCC’) recommended amendments to the TPA in connection with the interpretation of ‘understanding’ in the wake of its largely unsuccessful cases against petrol retailers for alleged price fixing in Ballarat and Geelong and its subsequent petrol pricing inquiry. In this article it is argued that the proposed amendments should be rejected.
The views expressed in this article reflect the submission by the authors to Treasury in its consultation on the Australian Competition and Consumer Commission's proposal: see Submission to Treasury on the Meaning of ‘Understanding’ in the Trade Practices Act 1974, Parliament of Australia, 7 April 2009, Submission No 3 (Caron Beaton-Wells and Brent Fisse) <http://www.treasury.gov.au/documents/1511/PDF/Beaton-Wells_and_Fisse.pdf> at 19 July 2009. The authors gratefully acknowledge the research assistance of Christopher Tran. The usual disclaimers apply.
1 Apco Service Stations Pty Ltd v Australian Competition and Consumer Commission (2005) 159 FCR 452 ('Apco’).
2 Australian Competition and Consumer Commission v Leahy Petroleum Pty Ltd (2007) 160 FCR 321 ('Leahy’).
3 ACCC, Petrol Prices and Australian Consumers: Report of the ACCC Inquiry into the Price of Unleaded Petrol (2007) 228–9 <http://www.accc.gov.au/content/item.phtml?itemId=806216&nodeId=d5fc6a56fb589b453abc58f22e0b78bd&fn=Petrol%20prices%20and%20Australian%20consumers%20all%20chapters.pdf> at 11 March 2009.
4 Chris Bowen and Kevin Rudd , ‘A National Fuelwatch Scheme’ (Press Release, 15 April 2008) <http://assistant.treasurer.gov.au/DisplayDocs.aspx?doc=pressreleases/2008/023.htm&pageID=003&min=ceb&Year=2008&DocType=0> at 13 March 2009.
5 Treasury, Australian Government, Discussion Paper: Meaning of ‘Understanding’ in the Trade Practices Act 1974 (2009) <http://www.treasury.gov.au/documents/1459/PDF/Discussion_paper.pdf> at 30 March 2009.
6 The submissions are available at Treasury, Australian Government, Submissions: Discussion Paper — Meaning of ‘Understanding’ in the Trade Practices Act 1974 (2009) <http://www.treasury.gov.au/contentitem.asp?ContentID=1511&NavID=037> at 19 July 2009. The exception was the submission by Maurice Blackburn Pty Ltd.
7 See David Crowe, ‘If in Doubt, Just Stop It', The Australian Financial Review (Melbourne), 26 August 2009, 11.
8 See ACCC, ‘ACCC To Oppose the Acquisition of Mobil Retail Assets by Caltex’ (Press Release, 2 December 2009) <http://www.accc.gov.au/content/index.phtml/itemId/904296> at 20 January 2010; ACCC, Monitoring of the Australian Petroleum Industry: Report of the ACCC into the Prices, Costs and Profits of Unleaded Petrol in Australia (2009) xxiii–xxvi <http://www.accc.gov.au/content/index.phtml/itemId/906872> at 20 January 2010.
9 As emphasised by the Dawson Committee, see Trade Practices Act Review Committee, Review of the Competition Provisions of the Trade Practices Act (2003) ch 1 <http://www.tpareview.treasury.gov.au/content/report/html/Chpt1.asp> at 22 January 2010.
10 ACCC above n 3, 230.
11 Treasury, Discussion Paper, above n 5, 2 is evasive. In footnote 2 it states that ‘[t]he expression “contract, arrangement or understanding” also forms part of the new cartel offences and prohibitions contained in the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008'.
12 See, eg, ss 45C, 45E, 51, 65A, 73.
13 Leahy (2007) 160 FCR 321, 331 (Gray J).
14 The Oxford English Dictionary defines ‘spectrum’ as ‘[t]he entire range or extent of something, arranged by degree, quality, etc': J A, Simpson and E S C, Weiner, The Oxford English Dictionary (2nd ed, 1989) vol XVI, 170Google Scholar.
15 A distinction between an unlawful cartel ‘contract’ and a lawful contract at common law, however, is that the latter is accompanied by an intention by the parties to be legally bound whereas the former necessarily lacks such an element so as to negate the defence of illegality: Leahy (2007) 160 FCR 321, 331 (Gray J).
16 Ibid 331 (Gray J).
17 Ibid 332 (Gray J).
18 Cf more modern relational contract theory which recognises a ‘continuum of commitment which is weak at the beginning and stronger as the process of negotiation develops': Nicholas, C Seddon and Fred, Ellinghaus, Cheshire & Fifoot's Law of Contract (9th Australian ed, 2008) 93–4Google Scholar.
19 See also Ian, Tonking, ‘Belling the CAU: Finding a Substitute for “Understandings” about Price’ (2008) 16 Competition & Consumer Law Journal 46, 59Google Scholar.
20 Apco (2005) 159 FCR 452; Leahy (2007) 160 FCR 321.
21 Apco (2005) 159 FCR 452, 464 (the Court); Leahy (2007) 160 FCR 321, 335 (Gray J).
22 See Sophie Morris, ‘Price Fixers Face Tough New Laws', The Australian Financial Review (Melbourne), 8 January 2009, 1. In truth the ACCC's record in proving collusion in the petrol industry has always been patchy. See Trade Practices Commission v Leslievale [1986] ATPR ¶40–679; Trade Practices Commission v J J & Y K Russell Pty Ltd [1991] ATPR ¶41–132; Trade Practices Commission v Services Station Association Ltd [1992] ATPR ¶41–179; Australian Competition and Consumer Commission v Mobil Oil [1997] ATPR ¶41–568.
23 ACCC, ‘Petrol Prices', above n 3, 228–9.
24 J Burnside, in ACCC, Petrol Prices and Australian Consumers: Report of the ACCC into the Price of Unleaded Petrol, Final Report, (2007) Appendix R, 368–74 <http://www.accc.gov.au/content/item.phtml?itemId=806216&nodeId=16fed9965960216fd7066496dacfbddc&fn=Appendix%20R.pdf> at 11 March 2009.
25 Ibid 228–9.
26 See Ian, Wylie, ‘Understanding “Understandings” under the Trade Practices Act — An Enforcement Abyss?’ (2008) 16 Trade Practices Law Journal 20Google Scholar; Tonking, ‘Belling the CAU', above n 19, 63–4.
27 Transcript of Proceedings, Australian Competition and Consumer Commission v Apco Service Stations Pty Ltd (High Court of Australia, Gleeson CJ and Hayne J, 2 June 2006).
28 ACCC, ‘No Appeal against Geelong Petrol Decision’ (Press Release, 19 June 2007) <http://www.accc.gov.au/content/index.phtml/itemId/790103/fromItemId/776481> at 13 March 2009.
29 Treasury, Discussion Paper, above n 5, [13].
30 For a useful overview of the main theories and their application in United States ('US’) and European Communities ('EC’) case law, see Sigrid Stroux, US and EC Oligopoly Control (2004) especially chs 0–1.
31 Phillip, Areeda and Herbert, Hovenkamp, Antitrust Law: An Analysis of Antitrust Principles and Their Application (2003) 61 [1410]Google Scholar.
32 Oligopolistic markets are generally defined by market concentration on the supply side, high entry barriers, inelastic product demand, product uniformity, multiple and smaller buyers, small variations in production costs and readily available price information: see, eg, Warren, Pengilley, ‘What is Required To Prove a “Contract, Arrangement or Understanding“?’ (2006) 13 Competition & Consumer Law Journal 241, 242Google Scholar.
33 See Frederic, M Scherer and David, Ross, Industrial Market Structure and Economic Performance (3rd ed, 1990) 199Google Scholar.
34 See Donald, F Turner, ‘The Definition of Agreement under the Sherman Act: Conscious Parallelism and Refusals to Deal’ (1962) 75 Harvard Law Review 655, 669Google Scholar. With the prominent exception of Richard Posner (see In re High Fructose Corn Syrup Antitrust Litigation, 295 F 3d 651, 654 (7th Cir, 2002) (Judge Posner); Richard A Posner, ‘Oligopoly and the Antitrust Laws: A Suggested Approach’ (1969) 21 Stanford Law Review 1562; Richard A Posner, Antitrust Law: An Economic Perspective (1976) ch 4), courts in the US have agreed with this position: see, eg, Clamp-All Corporation v Cast Iron Soil Pipe Institute, 851 F 2d 484 (1st Cir, 1988). Cf Alan, Devlin, ‘A Proposed Solution to the Problem of Parallel Pricing in Oligopolistic Markets’ (2007) 59 Stanford Law Review 1111Google Scholar.
35 One possible consequence of which is that the former is better dealt with in the context of merger policy and the concern with acquisitions that create market structures conducive to coordinated effects. See ACCC, Merger Guidelines (2008) ch 6 <http://www.accc.gov.au/content/item.phtml?itemId=809866&nodeId=7cfe08f3df2fe6090df7b6239c47d063&fn=Merger%20guidelines%202008.pdf> at 13 March 2009.
36 Note there is a tendency in the US case law to use the terms ‘express’ and ‘tacit’ to draw evidential rather than conceptual distinctions, as well as a degree of confusion regarding the significance of labelling an agreement ‘tacit'. See William, E Kovacic, ‘The Identification and Proof of Horizontal Agreements under the Antitrust Laws’ (1993) 38 Antitrust Bulletin 5, 19–20Google Scholar.
37 See, eg, George, A Hay, ‘Facilitating Practices', in ABA Section of Antitrust Law (ed), Issues in Competition Law and Policy Vol II (2008) ch 50, 1189Google Scholar; Michael, D Blechman, ‘Conscious Parallelism, Signalling and Facilitating Practices: The Problem of Tacit Collusion under the Antitrust Laws’ (1979) 24 New York Law School Law Review 881Google Scholar. See also Christopher, Decker, Economics and the Enforcement of European Competition Law (2009) 198–235Google Scholar, Appendix ('The Economics of Tacit Collusion’) which provides a useful summary of the extensive economic literature on this topic.
38 The most commonly invoked example is of two petrol stations located on either side of a highway using price boards to signal price changes and facilitate coordination of conduct: see George, A Hay, Practices that Facilitate Cooperation: The Ethyl Case in John, E Kwoka Jr and Lawrence, J White (eds), The Antitrust Revolution (3rd ed, 1989) 183Google Scholar.
39 See Areeda and Hovenkamp, above n 31, 209–13 [1430].
40 Sometimes this is referred to as ‘cheap talk', referring to verbal messages or announcements that are costless, non-binding and generally unverifiable. See, eg, Marian, Chapman Moore, Ruskin, M Morgan and Michael, J Moore, ‘Only the Illusion of Possible Collusion? Cheap Talk and Similar Goals: Some Experimental Evidence’ (2001) 20 Journal of Public Policy & Marketing 27Google Scholar.
41 The economic literature on each of these practices is prolific. For a selection, see Ralph, A Winter, ‘Price-Matching and Meeting Competition Guarantees', in ABA Section of Antitrust Law (ed), Issues in Competition Law and Policy Vol II (2008) 1269Google Scholar; Joseph, Kattan, ‘Beyond Facilitating Practices: Price Signalling and Price Protection Clauses in the New Antitrust Environment’ (1994) 63 Antitrust Law Journal 133Google Scholar; Steven, C Salop, ‘Practices that (Credibly) Facilitate Oligopoly Co-ordination', in Joseph, E Stiglitz and G, Frank Mathewson (eds), New Developments in the Analysis of Market Structure (1986) 265, 271Google Scholar.
42 Kovacic, above n 36, 2–13.
43 This phenomenon was recognised as early as 1945: see William Goldman Theatres, Inc v Loew's, Inc, 150 F 2d 738, fn 15 (3rd Cir, 1945).
44 Hay, ‘Facilitating Practices', above n 37, 1189.
45 15 USC § 1-7.
46 Richard, A Posner, Antitrust Law (2nd ed, 2001) 262Google Scholar; Areeda and Hovenkamp, above n 31, [1403].
47 American Tobacco Co v United States, 328 US 781, 810 (1946).
48 Monsanto Co v Spray-Rite Service Corporation, 465 US 752, 768 (1984).
49 Kovacic, above n 36, 25.
50 Darryl, Snider and Irving, Scher, ‘Conscious Parallelism or Conspiracy?', in ABA Section of Antitrust Law (ed), Issues in Competition Law and Policy Vol II (2008) 1143, 1144Google Scholar.
51 Cf the analysis in William, H Page, ‘Twombly and Communication: The Emerging Definition of Concerted Action under the New Pleading Standards’ (2009) 5 Journal of Competition Law & Economics 439Google Scholar; William, H Page, ‘Communication and Concerted Action’ (2007) 38 Loyola University of Chicago Law Journal 405Google Scholar.
52 See, eg, Federal Trade Commission v Cement Institute, 333 US 683 (1948); National Macaroni Mfrs Association v Federal Trade Commission, 345 F 2d 421 (7th Cir, 1965); In re Coordinated Pretrial Proceedings in Petroleum Products Antitrust Litigation, 906 F 2d 432 (9th Cir, 1990).
53 15 USC § 5. See Areeda and Hovenkamp, above n 31, 37 [1407]. Broadening s 5 for this purpose is controversial: see, eg, the criticisms in US Chamber of Commerce, ‘Unfair Methods of Competition under Section 5 of the FTC Act: Does the US Need Rules “Above and Beyond Antitrust“?', GCP: The Antitrust Chronicle (Issue 2, September 2009) <http://www.uschamber.com/NR/rdonlyres/e3sp4kmveqppwjzvovo6rnhbbv7izz46gkf2idhii2ja6npw4compiaoheuabc3s6gem2bcfkhbksu4mcmh75ym5pgc/0909antrust.pdf> at 22 January 2010.
54 See Eli Greenblat, ‘US Watchdog Accuses CSL of Price fixing', The Sydney Morning Herald (Sydney) 30–1 May 2009, 3; Eli Greenblat, ‘Warning on Tough Merger Stance in US', The Sydney Morning Herald (Sydney), 2 June 2009, 21. CSL subsequently withdrew its bid: Eli Greenblat, ‘CSL Pays Break Fee and Retreats', The Sydney Morning Herald (Sydney), 10 June 2009, 23. A private suit against CSL and rival, Baxter, followed: see Eli Greenblat, ‘CSL Taken To Court over Price Fixing Claims', The Age (Melbourne), 17 July 2009. Similarly, facilitating practices were one of the primary reasons for the ACCC's decision not to grant clearance to Caltex's proposal to acquire Mobil Oil retail outlets: see ACCC, ‘ACCC to Oppose the Acquisition of Mobil Retail Assets by Caltex', above n 8.
55 Opened for signature 25 March 1957, 298 UNTS 11 (entered into force 1 January 1958) ('the EC Treaty’).
56 Jonathan Faull and Ali Nikpay, The EC Law of Competition (2007) 210 [3.103].
57 Julian, M Joshua and Sarah, Jordan, ‘Combinations, Concerted Practices and Cartels: Adopting the Concept of Conspiracy in European Community Competition Law’ (2004) 24 Northwestern Journal of International Law & Business 647, 660Google Scholar.
58 Imperial Chemical Industries Ltd v Commission (C-48/69) [1972] ECR 619, [118].
59 Faull and Nikpay, above n 56, 212, paras [3.108]–[3.111].
60 Huls AG v Commission (C-199/92) [1999] ECR I–4287, [167].
61 Faull and Nikpay, above n 56, 212–13 [3.111]. Even a meeting between competitors on a single occasion, as opposed to a regular exchange of information over a period of time, may raise the presumption: see T-Mobile Netherlands BV and others v Raad van Bestur van de Netherlandse Mededingingsautoriteit (C-8/08), [2009] ECR 00, [54]–[62].
62 Richard, Whish, Competition Law (6th ed, 2009) 524–5Google Scholar.
63 See Commission v Anic Partecipazioni (C-49/92) [1999] ECR I–4125, [108]. The submissions of the Law Council of Australia and the American Bar Association in relation to the ACCC's proposed amendments both claimed that under EC law there is little distinction between an ‘agreement’ and a ‘concerted practice.’ See Submission to Treasury on the Meaning of ‘Understanding’ in the Trade Practices Act 1974, Parliament of Australia, 31 March 2009, Submission No 7, 10 (Law Council of Australia) <http://www.treasury.gov.au/documents/1511/PDF/Law_Council_of_Australia_Trade_Practices_Committee.pdf> at 19 July 2009; Joint Comments Of The American Bar Association Section Of Antitrust Law And Section Of International Law On The Meaning Of “Understanding” In The Australian Trade Practices Act 1974, Parliament of Australia, 26 March 2009, Submission No 1, 14–16 (American Bar Association) <http://www.treasury.gov.au/documents/1511/PDF/American_Bar_Association.pdf> at 19 July 2009. This claim is inconsistent with authoritative statements on EC law, including Whish, above n 62, 552–5; Faull and Nikpay, above n 56, 210–14; Barry, J Rodger and Angus, MacCulloch, Competition Law and Policy in the EC and UK (4th ed, 2009) 174–6Google Scholar.
64 Suiker Unie v Commission [1975] ECR 1663, 173–5. See also Gerhard Züchner v Bayerische Vereinsbank AG (C-172/80) [1981] ECR 2021, [13]; Deere v Commission (C-7/95) [1998] ECR I–3111, [86]; Thyssen Stahl v Commission (C-194/99) [2003] ECR I–10821, [81].
65 S. A. Cimenteries CBR v Commission (T-309/00) [2000] ECR II–491, [1849].
66 See, eg, the finding in Apco (2005) 159 FCR 452, 465 [47] (the Court).
67 Rhone-Poulenc SA v Commission (T-1/89) [1991] ECR II–867.
68 Commission v Anic Partecipazioni (C-49/92) [1999] ECR I–4125, [127]–[128].
69 Polypropylene OJ [1986] L 230/1, [73], [89].
70 Dansk Rorindustri v Commission (C-205/1) [2005] ECR I–5425, [143].
71 David, Bailey, ‘“Publicly Distancing” Oneself from a Cartel’ (2008) 31 World Competition 177, 178Google Scholar; Whish, above n 62, 101–2.
72 Bailey, above n 71, 179.
73 Okeoghene, Odudu, The Boundaries of EC Competition Law (2006) 81–6Google Scholar.
74 Whish, above n 62, 102.
75 ACCC, Petrol Prices and Australian Consumers: Report of the ACCC into the Price of Unleaded Petrol, above n 3; J Burnside, in ACCC, Petrol Prices and Australian Consumers: Report of the ACCC into the Price of Unleaded Petrol, above n 24.
76 See Wylie, above n 26, 33.
77 See Bill Reid, ‘Cartels — Criminal Sanctions and Immunity Policy’ (Paper presented at the Competition Law Conference, Sydney, 12 November 2005) 7–12 regarding the education of business people in tacit methods of collusion by business schools and trade practices compliance training.
78 Jonathan, B Baker, ‘Identifying Horizontal Price Fixing in the Electronic Marketplace’ (1996) 65 Antitrust Law Journal 41Google Scholar; Dennis, W Carlton, Robert, H Gertner and Andrew, M Rosenfield, ‘Communication Among Competitors: Game Theory and Antitrust’ (1997) 5 George Mason Law Review 423, 432Google Scholar; Severin, Borenstein, ‘Rapid Price Communication and Coordination: The Airline Tariff Publishing Case', in John, E Kwoka Jr and Lawrence, J White (eds), The Antitrust Revolution: Economics, Competition and Policy (4th ed, 2004) 310Google Scholar.
79 As recently confirmed in T-Mobile Netherlands BV v Raad van Bestur van de Netherlandse Mededingingsautoriteit, (C-8/08), [2009] ECR 00.
80 See generally Areeda and Hovenkamp, above n 31, 251–5 [1435]; Rhonda, L Smith, Arlen, Duke and David, K Round, ‘Signalling, Collusion and s 45 of the Trade Practices Act’ (2009) 17 Competition & Consumer Law Journal 22Google Scholar; Per, Baltzer Overgaard and H, Peter Mollgaard, ‘Information Exchange, Market Transparency, and Dynamic Oligopoly', in ABA Section of Antitrust Law (ed), Issues in Competition Law and Policy Vol II (2008) 1241Google Scholar; Whish, above n 62, 525.
81 See United States v Airline Tariff Publishing Co, 836 F Supp 9 (DDC 1993) <http://www.usdoj.gov/atr/cases/f4700/4796.htm> at 23 March 2009, discussed in Carlton, Gertner and Rosenfield, above n 78, 436–8; Hay, ‘Facilitating Practices', above n 37, 1211–2.
82 See Department of Commerce, The Government of Western Australia, FuelWatch <http://www.fuelwatch.com.au> at 19 July 2009. In relation to the failed attempt by the federal government to establish a Commonwealth equivalent, see Jason Soon, ‘Fuelwatch: A Tale of Two Interventions', ABC News, 4 March 2009 <http://www.abc.net.au/news/stories/2009/03/04/2506817.htm> at 23 March 2009.
83 See generally Swedish Competition Authority, The Pros and Cons of Information Sharing (November 2006), Konkurrensverket <http://www.kkv.se/t/NewsPage____1852.aspx> at 19 July 2009.
84 Carlton, Gertner and Rosenfield, above n 78. See also Maurice, E Stucke, ‘Evaluating the Risks of Increased Price Transparency’ (2005) 19 Antitrust 81Google Scholar. Such an assessment would have to be made in any event in the context of a private damages suit to determine loss and causation. This would also be consistent with the approach taken to information-sharing agreements in other jurisdictions. See, eg, Canada: Competition Bureau, Competitor Collaboration Guidelines: Draft for Public Consultation (2009) 28–30, <http://competitionbureau.gc.ca/eic/site/cb-bc.nsf/vwapj/Competitor-Collaboration-Guidelines-2009-05-08-e.pdf/$file/Competitor-Collaboration-Guidelines-2009-05-08-e.pdf> at 19 July 2009.
85 Areeda and Hovenkamp argue that ‘an act can facilitate undesirable consequences without being an unalloyed evil … [such an act] cannot be found unreasonable without considering the offsetting economic or social benefits of the practice. Thus, the label “facilitating practice” is only an invitation to further analysis, not a license for automatic condemnation': above n 31, 30–1 [1407].
86 The prohibition on third line forcing in TPA s 47(6), in particular.
87 Cf the ‘ancillary restraints’ defence under art 81(3) of the EC Treaty.
88 Under EC law the concept seems to extend to vertical as well as horizontal arrangements: see Faull and Nikpay, above n 56, 215 [3.116]–[3.117]. However, vertical arrangements should be explicitly and clearly excluded from per se prohibition: see Submission to Senate Standing Committee on Economics on the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008, Parliament of Australia, 20 January 2009, Submission No 5, section 4 (B Fisse) <http://www.aph.gov.au/senate/Committee/economics_ctte/tpa_cartels_09/submissions/sub05.pdf> at 19 July 2009.
89 See, eg, Trade Practices Commission v Parkfield Operations (1985) 7 FCR 534, 538–9 (the Court).
90 See Trade Practices Commission v Mobil Oil Australia Ltd (1984) 3 FCR 168, 183 (Toohey J).
91 See Dennis, A Yao and Susan, S DeSanti, ‘Game Theory and the Legal Analysis of Tacit Collusion’ (1993) 38 Antitrust Bulletin 113Google Scholar; Kevin, J Arquit, ‘The Boundaries of Horizontal Restraints: Facilitating Practices and Invitations to Collude’ (1992 – 1993) 61 Antitrust Law Journal 531Google Scholar; Areeda and Hovenkamp, above n 31, 122–38 [1419].
92 The justification for this restriction, however, is not clear. There seems to be no reason in principle why at least some of the factual matters listed in (b) may not be relevant in determining whether or not an ‘arrangement’ has been made.
93 See above n 8.
94 Without clear interpretation provisions and extrinsic materials, courts may not appreciate the significance of the amendment: see above n 19, 67. The impact of the change on all of the other provisions in the TPA that incorporate the expression ‘contract, arrangement or understanding’ also needs to be considered.
95 Cf the form of amendment proposed by Tonking: above n 19, 69. This could be seen as a modified version of a ‘concerted practice’ and has much to commend it, albeit with some limitations. For comments on Tonking's proposal, see Caron Beaton-Wells and Brent Fisse, ‘The Cartel Offences: An Elemental Pathology’ (Paper presented at the Joint Law Council of Australia-Federal Court of Australia Workshop on Cartel Criminalisation, Adelaide, 4 April 2009) <http://www.brentfisse.com/images/Beaton-Wells_&_Fisse_LCAFCA_Paper_4_April_2009.pdf> at 27 March 2010.
96 As argued in numerous submissions made in relation to the Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 (Cth).
97 Organisation for Economic Co-operation and Development, Prosecuting Cartels without Direct Evidence of Agreement, OECD Doc DAF/COMP/GF(2006)7 (2006) <http://www.oecd.org/dataoecd/19/49/37391162.pdf> at 13 March 2009.
98 See Warren, Pengilley, ‘ACCC Fails in Geelong Petrol Price-fixing Litigation: What Are the Lessons?’ (2007) 23(4) Australian and New Zealand Trade Practices Bulletin 54Google Scholar; Christopher, Hodgekiss, ‘Not Worth the Paper it was Written on … When Admissions Mean Nothing’ (2008) 16 Trade Practices Law Journal 155Google Scholar.
99 ACCC, Petrol Prices, above n 3, 229.
100 As the Full Court acknowledged, the ACCC succeeded against the other respondents in Apco based on a ‘powerful case’ of circumstantial evidence: Apco (2005) 159 FCR 452, 465.
101 The term ‘plus factors’ appears to have originated in the trial judgment in C-O Two Fire Equipment Co v United States, 197 F 2d 489 (9th Cir, 1952).
102 Snider and Scher, above n 50, 1152.
103 Matsushita Electric v Zenith Radio Corp, 475 US 574, 588 (1986).
104 This rule was recently extended to the pleadings context in Bell Atlantic Corporation v Twombly, 550 US 544, 549 (2007).
105 This list is taken from Kovacic, above n 36, 37–54. See also Christopher, Harding and Julian, Joshua, Regulating Cartels in Europe: A Study of Legal Control of Corporate Delinquency (2003) 151Google Scholar.
106 Kovacic, above n 36, 35.
107 Hay, ‘Facilitating Practices', above n 37, 1189.
108 Kovacic, above n 36, 35-6.
109 Ibid.
110 As recommended in Organisation for Economic Co-operation and Development, above n 7, 9. That said, it has been observed that courts applying a ‘holistic plausibility’ analysis approach in the US ‘seem to arrive at similar outcomes’ to those applying the plus factor approach, and not always with the same degree of transparency in reasoning: Snider and Scher, above n 50, 1172.
111 To get a sense of the complexity, see the suggested steps in the analysis required to appraise facilitating practices generally in Areeda and Hovenkamp, above n 31, 279–80 [1436e].
112 Ibid [1425e].
113 For discussion and examples, see ibid [1425].
114 Gregory, J Werden, ‘Economic Evidence on the Existence of Collusion: Reconciling Antitrust Law with Oligopoly Theory’ (2004) 71 Antitrust Law Journal 719, 748Google Scholar.
115 See the text accompanying n 59 above.
116 See Simon, Bronitt and Bernadette, McSherry, Principles of Criminal Law (2nd ed, 2005) 372–7Google Scholar.
117 See, eg, Seagood Trading Corporation v Jerrico Inc, 924 F 2d 1555, 1574–5 (11th Cir, 1991); Valley Liquors Inc v Renfield Importers, 822 F 2d 656, 662 (7th Cir, 1987).
118 See, eg, International Distribution Centers Inc v Walsh Trucking Co, 812 F 2d 786, 794–5 (2nd Cir, 1987).
119 See Areeda and Hovenkamp, above n 31, [1417].
120 Ibid [1417d].
121 Overgaard and Mollgaard, above n 80.
122 Carlton, Gertner and Rosenfield, above n 78, 432-434.
123 Ibid, 432.
124 Smith, Duke and Round, above n 80, 39.
125 Non-competitive performance may reflect collusion where competitive results are observed in an otherwise identical market: see Areeda and Hovenkamp, above n 31, [1421].
126 There is extensive economic literature on this. See the surveys of theoretical and empirical work by Switgard, Feuerstein, ‘Collusion in Industrial Economics — A Survey’ (2005) 5 Journal of Industry, Competition and Trade 163Google Scholar; Margaret, C Levenstein and Valerie, Y Suslow, ‘What Determines Cartel Success?’ (2006) 44 Journal of Economic Literature 43Google Scholar.
127 Pengilley, ‘What is Required', above n 32, 241–42.
128 Kovacic, above n 36, 54–5.
129 See Areeda and Hovenkamp, above n 31, 221 [1432b].
130 Werden, above n 114, 748–50.
131 See, eg, C-O Two Fire Equipment Co v United States, 197 F 2d 489, 497 (9th Cir, 1952); Bond Crown & Cork Co v Federal Trade Commission, 176 F 2d 974, 978–9 (4th Cir, 1949).
132 Areeda and Hovenkamp, above n 31, 92–101 [1415], 224–47 [1434c].
133 Kovacic, above n 36, 47.
134 Ibid.
135 Areeda and Hovenkamp, above n 31, 105–15 [1417].
136 See generally ibid [1412–5]; Kattan, above n 41, 140.
137 See the cases discussed in Areeda and Hovenkamp, above n 31, 74–5, 81–91 [1412-3].
138 Kovacic, above n 36, 55–7. See Ian, Tonking, ‘From Coal Vend to Basic Slag: Winning the Hearts and Minds?’ (2009) 32 University of New South Wales Law Journal 227, 237Google Scholar, for the suggestion that, if the ACCC's proposed amendments are adopted, a similar defence should be introduced in Australia.
139 Briginshaw v Briginshaw (1938) 60 CLR 336.
140 Chamberlain v The Queen [No 2] (1984) 153 CLR 521, 535 (Gibbs CJ and Mason J).
141 Criminal Code (Cth) para 4.1 (schedule to the Criminal Code Act 1995 (Cth)).
142 Sections 44ZZRF(2), 44ZZRG(2).
143 See In re High Fructose Corn Syrup Antitrust Litigation, 295 F 3d 651, 655 (7th Cir, 2002). For a description of the economic models underpinning economic evidence in this area, see Werden, above n 114.
144 See Joshua and Jordan, above n 57, 662.
145 See George, J Stigler, ‘What Does an Economist Know?’ (1983) 33 Journal of Legal Education 311Google Scholar; H, Hovenkamp, ‘Economic Experts in Antitrust Cases', in David, L Faigman, David, H Kaye, Michael, J Saks, Joseph, Sanders and Edward, K Cheng (eds), Modern Scientific Evidence (1999) 179Google Scholar §38–2.0; Roger D Blair and Jill Boylston Herndon, ‘Inferring Collusion from Economic Evidence’ (2001) 15 (Summer) ANTITRUST 17, 18.
146 See Justice Finkelstein, ‘Running a Criminal Jury Trial in Cartel Cases: The Special Problem of Economic Evidence and Some Proposals for its Judicial Management’ (Paper presented at the Law Council Trade Practices Workshop, September 2008).