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Troy Pilkington, a competition lawyer and Russell McVeagh partner, says Australia’s experience is concerning. If you're first in line, you then get a chance to earn leniency.” And what I mean by that is, the lawyers are getting faster at picking up the phone and asking for what we call a marker, which is essentially a marker in the sand. “I think people are potentially coming in slightly earlier to us. “Over the years a number of major litigations have come through that programme.”Ĭhamberlain’s team of 12 has also focused its work with the competition bar the lawyers on the coal face giving advice to businesses about whether their conduct breaks New Zealand’s competition laws.Ĭhamberlain pinpoints lawyers as driving the increased activity. He says they can still cooperate with his team. Under the criminal legislative changes the cartel team can make a recommendation to the Crown for criminal immunity, but that decision can only be made by the Crown based on the Solicitor General’s prosecution guidelines, Chamberlain says.Ĭhamberlain says missing out on immunity doesn’t mean cartel whistleblowers are on their own. “If you come and tell us about it and we don’t know about it, you may be able to essentially get 100% off. The policy has been around since 2004, Chamberlain says, and because secrecy often surrounds cartels for obvious reasons the leniency policy is a “good detection tool”. From there the cartel member has to put their conduct on the record either as a written statement or interview this is called a “proffer”, which secures the marker. If a cartel participant meets certain criteria they will be given a “marker” by the commission’s cartel team which confirms they are the first cartel member to get in touch with authorities. It’s a complex system but essentially it allows a person or business involved in a cartel to put a line in the sand with the regulator that this is happening, and because we told you first, we should potentially get leniency. The leniency programme is a key part of its work to break cartels, Chamberlain says. The commission says international studies show cartels can cause prices to rise as much as 20%, and also harms New Zealand businesses trying to compete. It undermines competition, and leads to higher prices for consumers. The trouble with cartels and cartel behaviour is simple. “This year has been a particularly busy year,” Chamberlain says.
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But 2022 is a bumper year, with more applications than it usually sees in a full 12 months. On an average year Chamberlain’s cartel team might get six-to-10 approaches through the leniency programme.
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This move brings New Zealand into line with Australia, which made cartel conduct criminal in 2009.Īs part of this legislative change the commission also updated its cartel leniency guide a how-to for first-movers to work with the regulator to crack a cartel.Ĭhamberlain’s team has seen a response from the business sector after the changes and a bout of awareness-raising by the commission including videos which describe how even builders and real estate agents can fall foul of cartel regulations. Under the legislative changes those guilty of intentionally engaging in a cartel can be sentenced to seven years in prison, and individuals face criminal fines of up to $500,000 and businesses criminal fines up to the greater of $10 million or three times the commercial gain from the offending or 10% of the company's turnover. In 2021 the commission, and Chamberlain’s team of 12, got a new tool in its regulatory toolbox when cartel conduct became a criminal office under the Commerce Act - meaning imprisonment is now on the table for those found guilty. The reality is that anti-competitive behaviour, or cartel behaviour, like rigging bids or agreeing on prices happens at all levels of businesses, he says. Grant Chamberlain is the head of the competition watchdog Commerce Commission’s cartel arm, which aims to stamp out anti-competitive behaviour like price-fixing between firms or slowing down production to ramp-up prices.Ī cartel isn’t shady characters wheeling and dealing in a “shrouded room”, Chamberlain says.Īnd it has nothing to do with drug lords or Pablo Escobar. From January to June this year, New Zealand’s cartel buster has had more applications to its cartel leniency programme than for the entire year of 2021.