Horizontal price agreements in Australian antitrust: Combatting anti-competitive corporate conspiracies of complicity and connivance

When the Trade Practices Act came into operation in 1974, Australian executives, for whom price-fixing had previously been commonplace, faced the prospect of having to abandon their usual methods of doing business. However, with no criminal penalties and a maximum monetary penalty of $250,000 (changed to $10m only in 1993), and with little social antagonism towards cartels, there were no significant incentives for firms to act independently. Yet while relatively few major price-fixing cases have been instituted, and no defendant has paid a major monetary penalty, there nevertheless has been a change in business attitudes towards price-fixing. It is not easy to provide a systematic characterization of either the products, firms, markets or justifications which have featured in these cases. To avoid being found guilty in the absence of “smoking gun” evidence, the courts have established that firms need only show that their behavior was consistent with ordinary commercial conduct.