What’s happening?
Starting today, the value of a Commonwealth penalty unit will increase from $313 to $330, in effect increasing maximum criminal and civil pecuniary penalties applicable to select breaches of the Competition and Consumer Act 2010 (Cth) (CCA).
Although only a 5% uptick, this follows a large increase in July 2023, representing a 20% increase in 18 months.
Why is it happening?
The change underscores the Federal Government’s push for more effective deterrence outcomes in response to non-compliance with the CCA (and a raft of other Commonwealth legislation).
Commonwealth Attorney-General, Mark Dreyfus, emphasised that these changes are designed to ensure courts have access to the ‘appropriate penalties to be able to punish the most serious breaches of Commonwealth law’.
So, what’s the impact?
These changes follow the commencement of the Crimes and Other Legislation Amendment (Omnibus No.1) Bill 2024. In particular:
- These changes will increase the value of a penalty unit to lift the maximum penalty a court can may impose, depending on all of the circumstances. This means that whether a court ultimately orders a higher penalty still depends on the facts of each case, taking into account the court’s existing discretion to impose an appropriate penalty.
- These changes will not affect penalties for all criminal offence or civil pecuniary penalty provisions under the CCA – only those where the CCA prescribes the consequences of a breach in terms of ‘[X] penalty units’. For example, let’s take some well known provisions:
- The changes would apply to a failure to comply with an ACCC notice requesting information or documents under section 155, e.g. as the CCA prescribes ‘a fine not exceeding 100 penalty units’ for an individual (500 for a corporation). This means the maximum corporate fine increases from A$156,500 to A$165,000.
- The changes would not apply to a breach of cartel laws under Part IV of the CCA, e.g. because rather than ‘[X] penalty units’, the consequences prescribed by the CCA for corporations are baked into the Act, being ‘the greater of’:
- A$50 million;
- 3x the total value of the benefits that have been obtained by one or more persons that are reasonably attributable to the conduct; or
- if the court cannot determine the total value of those benefits, 30% of the adjusted turnover of the corporate group during the period the contravention occurred, with a minimum period of 12 months.
Image credit: Chester Mox #52 wallet – Pocket view / Creative Commons / CC2.0 / Remixed to B&W and resized