As most now know, Australia has recently introduced some of the strictest anti-cartel legislation in the world, backed up with some of the most severe penalties – including gaol – for offenders.

What is perhaps not fully appreciated by business people and many of their advisers is that the laws regarding what is lawful and what is not have been entirely re-written. Without doubt, many arrangements that were lawful before the implementation of these reforms will now be illegal.

With so much at stake, and the likelihood of detection so high, it is our view that a more proactive approach must be taken by those responsible at companies, be they counsel or executives.

One also needs to look at the risk profile of their company. For example, one or more of the following (but by no means exhaustive) factors are often found where cartels have been detected:

• no or an unreliable/out of date compliance program;
• active industry associations;
• regular team bidding on projects or other partnership arrangements (e.g. construction, development or capital funding industries);
• sales driven market or industry;
• deteriorating or difficult market conditions;
• an “incestuous” industry where everyone knows everyone else and/or has worked for everyone else;
• an assumption that everyone knows the rules and that the business has a culture of compliance – often based on the premise that the business has never been in trouble.

If you are in a “high risk” group, regular review of possible signs of collusions are warranted.

A full guide is available from Deacons.