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The Australian Competition and Consumer Commission Immunity Policy for Cartel Conduct: a Critical Legal Analysis

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The Australian Competition and Consumer Commission Immunity Policy for Cartel Conduct: a Critical Legal Analysis University of Wollongong Research Online University of Wollongong Thesis Collection 1954-2016 University of Wollongong Thesis Collections 2016 The Australian Competition and Consumer Commission Immunity Policy for Cartel Conduct: A Critical Legal Analysis Pariz Lythgo-Marshall University of Wollongong Follow this and additional works at: https://ro.uow.edu.au/theses University of Wollongong Copyright Warning You may print or download ONE copy of this document for the purpose of your own research or study. The University does not authorise you to copy, communicate or otherwise make available electronically to any other person any copyright material contained on this site. You are reminded of the following: This work is copyright. Apart from any use permitted under the Copyright Act 1968, no part of this work may be reproduced by any process, nor may any other exclusive right be exercised, without the permission of the author. Copyright owners are entitled to take legal action against persons who infringe their copyright. A reproduction of material that is protected by copyright may be a copyright infringement. A court may impose penalties and award damages in relation to offences and infringements relating to copyright material. Higher penalties may apply, and higher damages may be awarded, for offences and infringements involving the conversion of material into digital or electronic form. Unless otherwise indicated, the views expressed in this thesis are those of the author and do not necessarily represent the views of the University of Wollongong. Recommended Citation Lythgo-Marshall, Pariz, The Australian Competition and Consumer Commission Immunity Policy for Cartel Conduct: A Critical Legal Analysis, Doctor of Philosophy thesis, Faculty of Law, Humanities and the Arts, University of Wollongong, 2016. https://ro.uow.edu.au/theses/4636 Research Online is the open access institutional repository for the University of Wollongong. For further information contact the UOW Library: [email protected] The Australian Competition and Consumer Commission Immunity Policy for Cartel Conduct: A Critical Legal Analysis This thesis is submitted in fulfilment of the requirements for the award of the degree DOCTOR OF PHILOSOPHY from University of Wollongong Pariz Lythgo-Marshall, BA LLB (HONS) Faculty of Law, Arts & Humanities School of Law September 2015 ABSTRACT This thesis provides a critical legal analysis of the Australian Competition and Consumer Commission’s Immunity Policy for Cartel Conduct. The Immunity Policy is touted as the ‘most effective anti-cartel enforcement tool in the world’ as it aims to increase cartel detection and deterrence by offering the first cartel participant full immunity from civil and criminal penalties. This thesis presents a detailed examination of the theory underpinning the policy’s design and intended operation to question whether the current model of assessing the effectiveness of the policy needs to be enhanced in light of more recent theoretical developments. Building upon this analysis, this thesis employs: a qualitative and cross- comparative investigation into the eligibility and cooperation requirements of the policy; an analysis of how the policy intersects with public and private enforcement within Australia and how this impacts upon confidentiality and third party actions; and a critical examination of some alternative measures to increase cartel detection and deterrence in addition to immunity. Despite the lionised rhetoric that surrounds the use of immunity policies worldwide, these claims are largely untested. Given the nature of cartel conduct, many quantitative assessments of the Immunity Policy are generated from incomplete or unknown information about cartel conduct and heavily rely on overgeneralised conceptions of rationality to inform the economic modelling upon which these studies are based. As a result, the research in relation to the Immunity Policy is currently quantitatively skewed and in need of a comprehensive analysis using qualitative methods to provide valuable and unique insight into the design and actual operation of the policy. A qualitative and cross-comparative analysis was conducted to assist that analysis. Semi-structured interviews were conducted with 16 prominent stakeholders in Australia to provide detailed insight into the current design and operation of the policy. This qualitative study helped inform the content and structure of the cross comparative research. To complement these empirical insights, the respective immunity policies in Canada, the United Kingdom and the United States were analysed and compared to the Australian version to develop a model of best practice. i As a result of this analysis, this thesis finds that the current approach to assessing the effectiveness of the Immunity Policy is narrow and outdated. To overcome these limitations, an enhanced model is developed, which is used to inform the recommendations produced by the research. The use of this enhanced approach to the assessment of the Immunity Policy will ultimately strengthen the Immunity Policy and the recommendations made are therefore commended for adoption by the ACCC. This thesis reveals that there are a number of limitations inherent in the design and operation of the Policy, including the approach most commonly used to assess its effectiveness in achieving cartel detection and deterrence. In light of this, the Immunity Policy should not be viewed as the single most effective anti-cartel enforcement tool but as one important component of the ACCC’s overall enforcement armory. Most importantly, in order for this claim to be truly tested, there is a need for the ACCC to implement viable alternative measures to Immunity, as outlined in this thesis, which can also achieve cartel detection and deterrence and prevent the overreliance on a single enforcement tool. ii THESIS CERTIFICATION CERTIFICATION I, Pariz Lythgo-Marshall, declare that this thesis, submitted in fulfilment of the requirements for the award of Doctor of Philosophy, in the Faculty of Law, Arts & Humanities – School of Law, University of Wollongong, is wholly my own work unless otherwise referenced or acknowledged. The document has not been submitted for qualifications at any other academic institution. Pariz Lythgo Marshall 3rd September 2015 iii ACKNOWLEDGEMENTS I am so fortunate to have been surrounded by such incredible people on this journey. The unwavering support, love and guidance I received throughout, provided me with the confidence and motivation to push through until the very end. This thesis would simply not have been completed without it. I am grateful to my supervisors, Gabriel and Brent, for their constructive comments and expertise over the past three years, and for pushing me beyond what I believed I was capable of. The Law Faculty staff have also been incredibly supportive; offering much needed advice and motivation to carry forward. I am especially thankful to my fellow PhD students, particularly Brett and Yvonne, who have shared this journey from the beginning. They are the only ones who could truly appreciate what a PhD experience is like, and share with me in the highs and the extreme lows. I cannot wait to reflect back on this time in my life with them and shout ‘We did it!’ I have also been fortunate to work with the most incredible, fun and supportive people at UOW UniAdvice. These awesome people saw me through my somewhat baffling decision to work full-time, in addition to completing a thesis full- time. Their constant laughter and warmth provided much needed social interaction and a break from the monotony of PhD life. Throughout this experience, I have also been lucky to have the support of some amazing people outside the confines of the University. I wish to thank my gym, Dragonfit, for providing the most effective stress outlet there is and the awesome people at my gym for always making me laugh, especially Brett (Maybe I will make the A-Team someday hey guys?). I also need to thank another important sporting institution, The Meat Trays, for all of the hilarious, crazy, fun adventures we have had together, providing social reprieve in times of great stress. iv There are also some people who are very special to me, who have supported me through some darker periods of my journey. I would like to thank my friends, especially Anna, Cat and Bridget for all of their love and support. Having such wonderful friends made everything seem a little bit easier. They kept my head held high and always had faith in me, even where I had lost it. I would also like to thank Cathy, Danielle and Pauline – they know just how important their help has been to my life. Most importantly, I am indebted to my family, my mum Catherine, my sister Thyme, and my beautiful pugs, Coco and dearest Lucy - who is no longer with us. There are no words to describe how amazing my family has been throughout my entire life, and especially throughout this journey. They have provided unwavering love, support and guidance through every single step. I look forward to being able to give back to them now that this chapter in my life is complete. I am truly very lucky to be blessed with such beautiful people in my life. I also need to thank each member of the Gordon family, for their unconditional love and support throughout. I am so grateful to be embraced by such a wonderfully welcoming and incredible second family. And finally, I would not have met the love of my life, Matt, if not for this PhD. Although it brought us together, at times, it felt like it would drive us apart. It was one of the most challenging experiences I have undertaken in my life (so far) and I truly believe that Matt’s understanding, compassion and love gave me the strength to carry on. I cannot thank him enough for all that he has done for me throughout this journey but I look forward to the adventures that await us now that it is done.
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