The ACCC’s success surrounding its enduring priorities of cartel conduct and anti-competitive conduct has continued last year. The ACCC obtained record penalties in both the BlueScope Steel cartel conduct case in August 2023 and also the resale price maintenance case against Techtronic in December 2023. The penalties imposed in both cases send a strong message about the ACCC’s commitment to fair competition and preventing anti-competitive conduct, and the Court’s increasing willingness to impose heftier fines to deter parties from engaging in this type of conduct.

2023 enforcement priorities

In announcing its enforcement priorities in early 2023, the ACCC largely focussed on its successes in the previous year in securing criminal convictions and prison terms (though suspended) and reconfirmed its commitment to deterring harmful anti-competitive conduct using both civil and criminal prosecutions. Clearly, deterring and punishing cartel conduct and anti-competitive conduct, including the misuse of market power continue to be enduring priorities for the ACCC. However, we did not see the flurry of activity of new civil and criminal proceedings like we did in previous years, with the ACCC only commencing one new relevant civil proceeding against Swift Networks.

Major developments and activities

Swift Networks

Bid rigging for the supply of technology infrastructure and services to the mining sector

The ACCC commenced civil proceedings against Swift in February 2023 alleging it had engaged in bid rigging when tendering to supply technology infrastructure and services to three Pilbara mining village projects. The matter proceeded swiftly, following admissions, with declarations, a penalty of $1.2m and the establishment of a competition law compliance programme and costs ordered following joint submissions by the parties. In his reasons, Justice Colvin found that Swift’s conduct was both deliberate and blatant, although carried out in ignorance of the law which he found to be no excuse or reason not to impose a civil penalty.

BlueScope

Record penalties for cartel conduct

In our ACCC 2022 in Review, we observed that the end of that year saw a key development in civil cartel proceedings. The regulator secured a judgment in the Federal Court against BlueScope and its former General Manager of sales and marketing, Mr Jason Ellis. The final sentencing concluded in early 2023 and the Court handed down an aggregate pecuniary of $57,500,000 against BlueScope and $575,000 (varied in September 2023 to $500,000) against Mr Ellis. The ACCC had also sought an order that Mr Ellis be disqualified from managing corporations for a period of seven years, however, significantly the Court was not prepared to make this order.