Brent Fisse LawyersSpecialising in Trade Practices, Competition Law and E-Commerce

  • We have been engaged in two recent major competition law matters.
  • We have been engaged in several cartel-related matters.
  • We have finished writing a book with Caron Beaton-Wells on Australia's anti-cartel regime (Australian Cartel Regulation: Law, Policy and Practice in an International Context, Cambridge University Press, Jan-Feb 2011, 700 pp approx). The cartel legislation continues to generate difficult issues that stem from poor legislative design. The Rudd Government is reponsible for this botched effort which is likely to backfire when litigation ensues and the courts have to come to grips with its failings. Meanwhile, corporations and their advisers are forced to deal with provisions that are overbroad and ill-defined.
  • A paper on the question of possible amendments to the concept of an 'understanding' between competitors under the TPA has been published: see Beaton-Wells and Fisse, 'Broadening the Definition of Collusion: A Call for Caution' (2010) 38(1) Federal Law Review 72.
  • The NZ Ministry of Commerce published a detailed discussion paper on cartel criminalisation (http://www.med.govt.nz/upload/70683/Cartel-Criminalisation.pdf). The NZ discussion paper focusses on many relevant issues and puts to shame the feeble discussion papers on this topic by the Australian Treasury. This is one of many reasons why it would be misguded for Australians to assume that the Kiwis should or will follow the TPA cartel provisions. Another is that the TPA is regarded with considerable scepticism in NZ. Compared with the Commerce Act, the TPA is overblown with detail, erratic in its adherence to economic principle, prone to crazy political extemporising (eg the Birdsville amendments, the proposed Richmond and Blacktown amendments, and dountless a forthcoming Longreach amendment) and generally in need of serious overhaul.
  • The Chairman of the ACCC shared his insight that those who breach the TPA by acting anti-competitively are crooks who wear "flash suits and shiny shoes" (Media Release, 25 February 2010). Trade practices compliance programs may need to be revised and expanded accordingly; see 'Cartellists beware - do not wear flash suits or shiny shoes' (March 2010).
  • We are acting for several new clients including a pre-paid card entrant and a major online retailer.
  • The Commerce Commission of NZ settled litigation against credit card isssuers and banks, saying that the settlements have achieved 'a new competitive landscape for the credit card industry in NZ' (see http://www.comcom.govt.nz//MediaCentre/MediaReleases/200910/creditcardsettlementslowernewzeala.aspx). We advised on the theory of the case under ss 27 and 30 of the Commerce Act.
  • The Canadian Bureau of Competition introduced a process for providing written binding opinions on the application of the new amendments to s 45 of the Competition Act (Can) to existing agreements - this process applied until the new provisions commenced on 10 March 2010: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/03095.html Last May, the Bureau published detailed draft guidelines on collaborations between competitors under the amendments to s 45: http://www.competitionbureau.gc.ca/eic/site/cb-bc.nsf/eng/02987.html Compare the very limited guidance provided by Treasury and the ACCC about the application of the cartel amendments to Part IV Div 1 of the TPA.
  • We have advised several major corporations on the application of the cartel legislation to proposed commercial alliances and joint activity.
  • We continue to advise clients on changes to compliance and liability control precautions for managing the anti-cartel legislation. This work includes reviews of possible cartel provisions in pre-existing contracts - the cartel legislation makes it an offence to give effect to pre-existing cartel provisions.
  • We have advised and continue to advise a foreign government on issues of cartel criminalisation.
  • "The Contract Requirement for the Joint Venture Exceptions under ss 44ZZRO and 44ZZRP of the Trade Practices Act" was published in (2009) 17 Competition & Consumer LJ 43. The paper discusses the silly but dangerous traps for the unwary that have been set by ss 44ZZRO and 44ZZRP.
  • We are preparing a working paper on template jury directions on cartel offences, with appeal-resistance ratings ranging from low fire danger to spontaneously combustible. No template jury directions have been published by our law-makers for comment or as proof of concept (contrast eg ABA, Model Jury Instructions in Criminal Antitrust Cases (2009)). Examples of jury directions with a spontaneously combustible rating are set out in Bench Test - Cartel Offences - Charge 5 and Bench Test - Cartel Offences - Charge 6. Later Bench Tests will assess various possible directions on the vortex of a 'cartel provision' under s 44ZZRD, the element of 'belief', the relevance or otherwise of the concept of 'wilful blindness' and other key issues. The 'Treasury direction' is a very taxing resource - it is laden with explanations derived from the Henry report on future taxation policy. The 'Abbott direction' on the purpose condition under s 44ZZRD is derived from the doctrine of double effect and results in an abortion. The 'Ratzinger direction' is in the form of an unsuccessful apology to jurors.
  • Brent Fisse conducted an intensive post graduate subject “Cartels and Competition Law” at Melbourne Law School, 5-11 August 2009. See Cartels and Competition Law 2009. This subject offered a comprehensive and constructive critique of the new cartel legislation plus extensive materials, including various unpublished commentaries. The course will next be offered in February 2011.
  • We have prepared a working paper for clients on withdrawal as an avenue for denying liability for the cartel prohibitions as a principal party and for all forms of ancillary liability. The disparities under the TPA are arbitrary and stem from careless accidents of legislative history.
  • We have prepared an internal working paper on the use of unilateral facilitating practices as a means of side-stepping liability for cartel offences and cartel civil prohibitions. Used with care, unilateral facilitating practices can side-step the per se criminal and civil prohibitions against cartel conduct. This is helpful given that the cartel prohibitions are ill-defined and too far-reaching. Faciltating practices are a very important part of any serious discussion about cartel regulation but have been much neglected in Australia to date. For example, the recent cartel amendments and discussions by the government and enforcement agencies lack any Rudder of 'detailed programmatic specificity' on unilateral facilitating practices - there is no apparent program, detail or specificity.
  • Brent Fisse gave a paper on exceptions to the TPA cartel prohibitions at the LexisNexis conference on cartel conduct in Sydney on 16 July 2009. The exceptions create many nasty surprises for the unwary. They also reflect a failure by lawmakers to see the wood for the trees and are in a state of disarray. A forthcoming book with Caron Beaton-Wells on Australia's anti-cartel regime (Australian Cartel Regulation: Law, Policy and Practice in an International Context, Cambridge University Press, Jan-Feb 2011) includes a substantial chapter on this subject.
  • Brent Fisse has prepared a comprehensive analysis of individual liability, as a principal party and for complicity, for the cartel offences and for breaches of the civil cartel prohibitions; publication is expected in mid-2010. For all the fanfare and endless hot gospel about how cartellists will go to jail, no adequate attempt has been made by the lawmakers to work out how best to achieve individual accountability for cartel conduct. For example: (a) the explanation given in the Explanatory Memorandum (at pp 29-30) is confused and misleading - it misstates the operation of the extended liability provisions in s 6; and (b) no attempt has been made to address the inevitability of 'shut-eyed sentries' and the use of the 'insulated conductor' stratagem that have been known problems at least since the heavy electrical equipment conspiracies in the US in the late 1950s. On shut-eyed sentries and the insulated conductor stratagem, see Fisse, "Avoidance and Denial of Liability for the Cartel Offences: Proactive Lawful Escape Routes Left Open by the Cartel Legislation" (2009 Competition Law Conference, Sydney, 23 May 2009) in Publications.
  • Have you grappled with the myriad bases of liability for complicity in cartel conduct under the new cartel legislation? The proliferation of divergent heads of criminal and civil liability for complicity is farcical.
  • TPA s 84(4A) purports to exclude the possibility of jail where an individual employer is liable for a cartel offence on the basis of the conduct or mental state of an employee under s 84(3)(4). Look closely at how s 84(4A) will operate in the context of a jury trial. As an individual employer, would you want to run the gauntlet of relying on s 84(4A)?
  • We have prepared a detailed working paper for clients on corporate criminal liability for cartel conduct. This includes an analysis of the case law where knowledge or belief has been attributed to a corporation by adding up bits of information held by various employees or agents without focussing on any cogent principle of corporate responsibility.
  • Brent Fisse gave a presentation on "The TPA cartel amendments - What are the main changes? What do they mean for business?" at the Commercial Law Association trade practices seminar in Sydney on 19 June 2009. The presentation included an outline of the practical implications of the TPA amendments for compliance and liability control systems.
  • A paper is available on the requirement of a contract, or a proxy for a contract, for the proposed jv exceptions under ss 44ZZRO and 44ZZRP - see Publications. This requirement has adverse and oppressive implications for many Australian joint venture arrangements and other collaborations between competitors. The Explanatory Memororandum tries to paper over the cracks but the gap is wide and the explanation given is suspect as a matter of law, incomplete and highly misleading as a guide to compliance. Along with such other aberrations as the Birdsville amendment to s 46, the prohibition against third line forcing and the proposed amendments on creeping acquisitions, the contract requirement for the joint venture exceptions is on the lunatic fringe of world competition laws and policies. Contrast the pretence of Ken Henry that Treasury is concerned to avoid complexity and undue imposition of risk in order to promote a Amartya Sen state of wellbeing: "Treasury glad to see back of Costello", The Australian, 17 Dec 2007.
  • Brent Fisse gave a paper, "Avoidance and Denial of Liability for the Cartel Offences: Proactive Lawful Escape Routes Left Open by the Cartel Legislation" at the 2009 Competition Law Conference, Sydney, 23 May 2009. See Publications.
  • New partners Oscar and Bertie Fisse at work on the cartel legislation: "Part IV Div 1 is a real dog's breakfast" (January 2009)
  • Bertie Fisse, "This Horizontal Arrangement has a Positive Welfare Effect but is not Covered by any Anti-Overlap Exception" (8 September 2009)
  • We have drawn to the attention of the Auditor-General the inadequacy of the treatment of joint ventures in the ACCC guide, Cartels: Detection and Deterrence: A Guide for Government Procurement Officers (2009).  The Guide refers briefly to 'certain joint ventures' and 'certain joint venture arrangements' without explaining exactly what kinds of joint bidding or other collaborative arrangements should or should not pass scrutiny.  Joint bidding and similar arrangements can easily be used to avoid the cartel prohibitions, with or without justification.
  • Caron Beaton-Wells and Brent Fisse presented a detailed paper, "The Cartel Offences: An Elemental Pathology" at a joint Law Council of Australia and Federal Court of Australia workshop on cartel criminalisation in Adelaide, 3-4 April 2009. This paper includes extensive new material on the concept of an 'understanding' and the fault elements of the cartel offences. The part dealing with the concept of 'understanding' and the ACCC's unsatisfactory proposal for amending the TPA has been included in a submission to Treasury - see Publications. The whole paper is now available - see Publications.
  • Brent Fisse made a submission to the Senate Economics Committee on the Trade Practices Amendment (Cartel Conduct and Other Conduct) Bill 2008; see Publications. This ill-conceived Bill (enacted in June 2009 and which commenced on 24 July 2009) contains many unsatisfactory provisions, some of which impose per se criminal and civil liability for pro-competitive or harmless conduct.
  • For a culinary review of the new cartel legislation, see Fisse, "Kartelpuffer: A Very Flat and Indigestible Australian Pancake" (24 August 2009) and hear the radio interview http://www.brr.com.au/event/60707?popup=true
  • A detailed analysis of the cartel criminalisation exposure draft material released by the Government for public consultation on 11 January 2008 was set out in an Issues Paper in a submission to Treasury prepared by Caron Beaton-Wells of the University of Melbourne and Brent Fisse - the submission is available at: http://www.treasury.gov.au/documents/1350/PDF/Dr_Caron_Beaton-Wells_and_Mr_Brent_Fisse.pdf This submission argues that the ACCC proposal for amending the law on the concept of 'understanding' is misconceived.
  • The Issues Paper referred to above was based on a paper presented at the University of Sydney on 21 February 2008 and the University of Melbourne on 25 February 2008. It was published in revised form in (2008) 36 Australian Business Law Review 166 together with commentaries by Justices Peter Heerey and Roger Gyles, Luke Woodward and Bob Baxt.
  • A paper by Beaton-Wells & Fisse, "Criminal Cartels: Individual Liability and Sentencing", was presented at the 6th Annual University of South Australia Trade Practices Workshop on 18 October 2008. This paper provides a constructive critique of numerous further flaws in and questions raised by the Australian proposals for cartel criminalisation. The cartel amendments to the TPA passed in June 2009 do not resolve those flaws or questions.
  • Brent Fisse presented a paper "Cartel Offences" at the Federal Criminal Law Conference in Sydney on 5 September 2008. He presented another paper with Caron Beaton-Wells at the NZ Competition Law and Policy Institute workshop on 2 August 2008 - "The Australian Criminal Cartel Regime: A Model for New Zealand?" - the main argument of this paper is that the Australian model is pervasively flawed and unsuitable for adoption in NZ, or anywhere.
  • We are acting in a matter of alleged breach of the principle of competitive neutrality.
  • Brent Fisse has advised on price fixing issues in several recent cases.
  • We have conducted independent audits of trade practices compliance programs for a range of companies.
  • We prepared a collective bargaining notification for the members of an industry association (AIR). The notification has been accepted by the ACCC - see ACCC Assessment of 8 January 2009.
  • We acted for the Universal Music Group in obtaining clearance in Australia from the ACCC for the Australian component of the global acquisition of BMG Music Publishing for $2 billion (October-December 2006).
  • We acted for PPCA in its application for re-authorisation of its collective licensing arrangements.
  • We acted for the Universal Music Group in obtaining clearance in Australia from the ACCC for the acquisition of the Sanctuary Group.
  • Brent Fisse advised a syndicate of US plaintiff attorneys on Australian price fixing cases and their implications for US-based class actions.
  • Brent Fisse advised a major company on MFN clauses under the TPA.
  • We advised on mitigation of penalties under the TPA.
  • We prepared drafting instructions for electronic transactions legislation in Fiji under an ADB-funded project. The Electronic Transactions Promulgation was gazetted on 14 November 2008.
  • Brent Fisse’s paper “The Cartel Offence: Dishonesty?” was published in (2007) 35 ABLR 235.
  • "The Australian Cartel Criminalisation Proposals: An Overview and Critique" was published in (2007) 4(1) Competition Law Review 51 (see Publications for a copy of this paper).
  • Brain-teaser: reconsider ACCC v Pauls Limited [2002] FCA 1586 at [125]-[126] - is the counterfactual reasoning valid or fundamentally inconsistent with the wording and purpose of the statutory provisions on price fixing? See Fisse, "Controlling a Price and the Legal Irrelevance of Counterfactual Analysis" (2009).
  • FOI applications against Treasury and ACCC:
    • Lexpert Publications and Brent Fisse applied for AAT review of Treasury and ACCC decisions about FOI requests made in March 2007.
    • The Treasury material sought is the report of the Working Party on criminalisation of cartel conduct in April 2004. The ACCC material sought was a copy of a supplementary submission made by the ACCC to the Dawson Committee in 2002 and referred to in the Dawson Committee's Report. See Application for AAT Review of FOI Decisions by Treasury and the ACCC June 2007 (2 mb).
    • On 24 August 2007 Gilbert + Tobin were advised by the AGS that the ACCC had decided to release the information sought from them. The documents were made available on 4 October 2007. They reveal some remarkable indadequacies. For the documents and introductory comments see ACCC Supplementary Submissions to Dawson Committee 2002 (1 mb).
    • On 10 August 2007 the applicants were advised by Treasury that the Secretary of the Treasury was giving active consideration to issuing a certificate under section 36(3) of the FOI Act and asked for a submission on that question within 2 weeks. See Submission to Secretary of Treasury 24 August 2007 (564 kb). The expectation was that a decision on the section 36(3) certificate issue would be made within 2 weeks after receipt of our submission. Eventually, in a letter dated 5 November 2007, we were advised that a decision had been made: (a) not to issue a conclusive certificate; and (b) to release some additional pages from the Working Party Report.
    • The AAT review (hearing on 19 February 2008) did not succeed. See AAT Decision 10 April 2008. An appeal against that decision to the Federal Court was heard by the Full Federal Court in September 2008 but failed - see Fisse v Secretary, Department of the Treasury [2008] FCAFC 188 (11 December 2008) at http://www.austlii.edu.au/au/cases/cth/FCAFC/2008/188.html.
    • The Working Party Report might have shed some light on the many issues about cartel criminalisation in Australia that have never been adequately discussed in any other public official document; for particulars of the many shortfalls in publicly available information about important issues, see Fisse Affidavit in AAT Proceedings. See also Fisse AFR op-ed 26 October 2007. For the heavily redacted Stasi-style version of the Report released by Treasury in response to the FOI application, see Working Party Report on Criminal Penalties for Cartel Behaviour (2004) (3.2mb). A satirical version, 'The Working Party Report on Cartel Criminalisation: Transcription from Air Costello's Balloon Flight Recorder', is rumoured to be in preparation.
 
 

 
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