COMPETITION LAW CONFERENCE, SYDNEY
24 MAY 2008

SESSION 4 
INTRODUCTORY REMARKS BY THE CHAIR OF THE SESSION
‘Considerations to be taken into Account in 
Framing a Cartel Offence’

The following considerations need to be kept in mind when framing cartel offences.

1.	Individual citizens must be able to understand the law and so decide whether, acting reasonably, proposed action is unlawful.

2.	Where an indictable offence is framed in legislation, it must be defined in a way that is capable of explanation to a jury because an indictable offence is, by definition, a trial upon indictment before a jury.

3.	Jurors often lack any real experience in critical or analytical thinking within a legal or commercial framework and are not accustomed to extended periods of concentration on relatively abstract matters.

4.	The formulation of the offence should try to avoid undue intersection with or reliance upon a cascading sequence of other sections or definitions, in isolating the content of the offence.  

5.	Much of the communication with the jury (by the judge, counsel and witnesses) is oral.  There are many reasons for this, but one compelling reason is uncertainty as to whether all members of a jury are likely to be functionally literate in the subject matter.  In the course of the trial, the judge and counsel will frequently refer to statutory provisions relative to the offence in question.  It is important that jurors be able to understand those provisions and, most importantly, the relationship between them and the evidence.  

6.	The major function performed by a judge in a criminal trial is to ‘charge the jury’, that is, to direct the jury as to matters of law and to summarise the evidence.  In any criminal trial there are many ‘standard’ directions which must be given to the jury.  The directions involve matters such as onus of proof, the standard of proof and the need for unanimity subject to statutory requirements in relevant jurisdictions.  Although some of these directions may be regarded as ‘standard’ from the point of view of the judge presiding over the trial, many are quite novel to jurors.  In that sense, a juror may well have a steep learning curve.  In the course of the charge to the jury, the judge will refer to the relevant sections which constitute the offence and explain their meaning.  Subtle distinctions, obvious to a lawyer or to a person familiar with the particular area of human endeavour in which the alleged offence has occurred, such as the discipline of competition law, may not be obvious to jurors.  They will not always have the same background against which to understand either the evidence (particularly expert evidence in a competition law context) or any explanation of the law.  

7.	That is not to say, however, that a jury is an inappropriate tribunal of fact for complex matters.  It simply means that in framing the content of the offence, the draftsman must be astute to the applied consequences for a trial, of the approach adopted.  Juries are often called upon to decide difficult and complex questions according to their understanding of community values.  Accordingly, questions of honesty or dishonesty are often left to juries without the need for any guidance as to what is honest and what is not.  Similarly, in cases of allegedly dangerous or reckless driving, the question of whether or not conduct is ‘dangerous’ or ‘reckless’ is left to the jury.  In manslaughter cases, juries are often asked to determine whether or not, according to ordinary community standards, the conduct of the accused person was so reckless as to justify his or her conviction.  Questions of intention are frequently left to juries to be answered by reference to the evidence in the light of human experience.  Even the ultimate question of guilt is determined according to a standard which is stated but generally not explained to jurors, namely, that they must be satisfied beyond all reasonable doubt.  It is for the members of the jury to apply their understanding of reasonable doubt to the circumstances of the particular case.

8.	Care must be taken in defining the issues which are left to a lay jury.  Statutory provisions creating indictable offences are usually expressed in general terms, identifying particular concepts and the general nature of the offence thus leaving it to the jury, informed by community standards, to decide whether in a particular case, the conduct in question falls within the relevant prohibition.  

It seems to me that these considerations ought to guide policymakers in approaching the formulation of the content of a criminal offence.  With those introductory remarks, I would like to introduce our speakers who will address the bifurcated topics of ‘Defining the Australian Cartel Offences:  Disaster Recovery?’ by Mr Brent Fisse, Lawyer and Associate of the Ross Parsons Centre of Commercial, Corporate and Taxation Law, Faculty of Law, University of Sydney and ‘Forks in the Road:  Challenges Facing the ACCC’s Immunity Policy for Cartel Conduct’ by Dr Caron Beaton‑Wells, Senior Lecturer and Director of Competition Law, University of Melbourne.  

Justice Andrew Greenwood
FEDERAL COURT OF AUSTRALIA