The Economic and Business History of Cartels in Australia
The Australian cartel history project, conducted by Professor David Round and the team at the Centre for Regulation and Market Analysis (CRMA), is expanding fast. The team has been granted sole access to the Australian Register of Restrictive Agreements (commonly known as the Secret Register) which records cartel agreements registered during the period 1967 to 1974. Confidentiality provisions previously restricted access and the team are the first to have been allowed access to these records.
As a first step the research team compiled a database of basic information about each agreement and combined this with information from the annual reports of the Commissioner of Trade Practices. The Register comprises 14,480 inter-firm agreements documenting agreed restrictive practices. Entering the details of the agreements to be used in further research was a major task that took approximately one year. Unfortunately, the supporting material, such as correspondence, evaluations and records of meetings with the Commission, has been destroyed by the Australian Archives under regular disposal routines. However, the remaining information is sufficient to allow a detailed picture of the common and generally accepted collusive and anti-competitive arrangements that prevailed until and beyond the introduction of the Trade Practices act 1965.
The research team have now presented two papers resulting from their first analysis of the Reguister and the agreements at an invited session at the 15th Annual Conference of the European Business History Association, held at the National Technical University of Athens. Dr Kerrie Round and Professor Martin Shanahan delivered their paper 'Creating the "Secret Register": The Background to the Register of Trade Agreements in Australia 1967-1974'. This paper looks at the political, social and economic history of markets in Australia and the pressures that led to the introduction of the Trade Practices Act 1965, Australia's first new antitrust law since the Australian Industries Preservation Act of 1906. Professor David Round presented a paper written with Dr Zdravka Brunkova, 'Confirming the Crisis of Collusion: A First Look at the Contents of the Australian Register of Restrictive Agreements'. This paper detailed the workings of the secret register of collusive agreements that was overseen by the Commissioner of Trade Practices, and presented simple tabular analyses of the 14,000+ agreements that were registered by type of practice and by industry, and by whether the agreements were disbanded or not. Both papers are available by emailing Rachel Gaetz at email@example.com.
The research team are currently undertaking a much more detailed assessment of the agreements.
You can read more about the cartel history project at CRMA's website.
- Creating the "Secret Register": The Background to the Register of Trade Agreements in Australia 1967-1974, (Kerrie Round and Martin Shanahan), paper available by emailing Rachel Gaetz at firstname.lastname@example.org.
- Confirming the Crisis of Collusion: A First Look at the Contents of the Australian Register of Restrictive Agreements, (David Round and Zdravka Brunkova), paper available by emailing Rachel Gaetz at email@example.com.
- Serious cartel conduct, criminalisation and evidentiary standards: Lessons from the Coal Vend Case of 1911 in Australia, (Martin Shanahan and David Round), (forthcoming Business History, 2009 vol 51, no. 6, pp 875-906)
- Anti-cartel or Anti-foreign? Australian Attitudes to Anti-competitive Conduct before World War I
The Australian Competition and Consumer Commission Enforcement and Compliance Project
Introduction to the ACCC Enforcement and Compliance Project
The ACCC Enforcement & Compliance Project was originally begun with the support of the Centre for Competition and Consumer Policy, Regulatory Institutions Network, Australian National University. It is being continued from 2006 to 2011 with Australian Research Council Discovery Project and Fellowship funding for Associate Professor Christine Parker (Melbourne Law School, University of Melbourne) and Dr Vibeke Nielsen (Political Science, University of Aarhus) for the project "The Impact of ACCC Enforcement Action: Evaluating the Explanatory and Normative Power of Responsive Regulation and Responsive Law".
The main purpose of the project is empirical testing of major theories of how businesses respond to regulatory enforcement and why they do or do not comply with the law:
- to understand better how businesses perceive regulatory enforcement and the other tools regulators use to promote compliance;
- to understand better when and why businesses respond to regulation by seeking to comply better;
- to understand better what other pressures and factors, apart from official regulatory action, influence business responses to regulation;
- ultimately to help design and implement better regulation on the basis of the best evidence we can get about human behaviour - evidence-based regulation.
The project tests these theories using data collected in the ACCC Enforcement and Compliance Survey of nearly 1000 larger businesses in Australia, as well as qualitative interviews with ACCC staff, trade practices lawyers and business people. Full details of the methodology are available in a paper that can be downloaded here.
Our research has resulted in findings of direct policy relevance to ACCC enforcement and compliance. We also use our data to test more fundamental underlying theories of business behaviour in relation to the law including theories of deterrence, legitimacy and procedural justice, social influence and responsive regulation. Finally, the project will also examine the implications of what empirical and policy-oriented research on regulatory compliance and regulatory enforcement means for how we should conceptualise law more responsively and pluralistically for an age of regulatory capitalism (see the work of John Braithwaite and David Levi-Faur).
Reports and Working Papers
- Compliance and Enforcement Project: Preliminary Research Report, (Canberra, Centre for Competition and Consumer Policy, Australian National University, 2003) (Christine Parker and Natalie Stepanenko)
- ACCC Enforcement and Compliance Project: The Impact of ACCC Enforcement Activity in Cartel Cases (Canberra, Centre for Competition and Consumer Policy, Australian National University, 2004) (Paul Ainsworth, Christine Parker & Natalie Stepanenko)
- ACCC Enforcement and Compliance Project: report on ACCC Compliance Education and Liaison Strategies(Canberra, Centre for Competition and Consumer Policy, Australian National University, 2004) (Christine Parker, John Braithwaite & Natalie Stepanenko)
- The ACCC Enforcement and Compliance Survey: Report of Preliminary Findings (Canberra, Centre for Competition and Consumer Policy, Australian National University, 2005) (Vibeke Lehmann Nielsen and Christine Parker)
- The ACCC Enforcement and Compliance Project: Assessment of the Impact of ACCC Regulatory Enforcement Action in Unconscionable Conduct Cases (Canberra, Centre for Competition and Consumer Policy, Australian National University, 2006) (Michelle Sharpe & Christine Parker)
- Examination of How the Principles of Self-Regulation Could Apply to the Not-For-Profit Sector, May 2007, Report prepared for the State Services Authority, Victoria, Review of Not-for-Profit Regulation (Christine Parker)
- ACCC Compliance Project - Explanation of Project and Methodology (2008) (Christine Parker and Vibeke Lehmann Nielsen)
Published Journal Articles and Book Chapters
- The Fels Effect: Responsive Regulation and the Impact of Business Opinions of the ACCC Griffith Law Review (2011) Vol 20 No 1 (Christine Parker and Vibeke Lehmann Nielsen)
- The Challenge of Empirical Research on Business Compliance in Regulatory Capitalism (Christine Parker and Vibeke Lehmann Nielsen) Annual Review of Law and Social Sciences (ed. John Hagan) 5, 2009, 45-70
- Do Businesses Take Compliance Seriously? An Empirical Study of Implementation of Trade Practices Compliance Systems in Australia (2006) Melbourne University Law Review 30: 441-494 (Christine Parker & Vibeke Nielsen). This article examines the extent to which Australian businesses have implemented trade practices compliance systems - and found the results to be patchy and disappointing.
- The Compliance Trap: The Moral Message in Responsive Regulatory Enforcement (2006) Law & Society Review 40(3): 591-622 (Christine Parker)
- What do Australian Businesses Think of the ACCC and Does it Matter?" (2007) Federal Law Review, 35, 187-239 (Christine Parker & Vibeke Nielsen). This article examines businesses' perceptions of the deterrence, strategic sophistication and justice of the ACCC and how this influences their attitudes towards complying with the Trade Practices Act.
- A Bang or a Whimper? The Impact of ACCC Unconscionable Conduct Enforcement" (2007) Trade Practices Law Journal 15(3):139-162 (Michelle Sharpe & Christine Parker)
- Meta-regulation: Legal Accountability for Corporate Social Responsibility (Christine Parker) in Doreen McBarnet, Aurora Voiculescu & Tom Campbell (eds) The New Corporate Accountability: Corporate Social Responsibility and the Law, Cambridge University Press, 2007, 207-237. (To be reprinted in David Kinley (ed) The International Library on Rights: Human Rights and Corporations, Ashgate Publishing, Aldershot, forthcoming).
- How Much Does it Hurt? How Australian Businesses Think About the Costs and Gains of Compliance with the Trade Practices Act (2008) Melbourne University Law Review 32(2): 554-608 (Christine Parker & Vibeke Nielsen). This research tests the extent to which businesses fear the deterrence of the penalties available under the Trade Practices Act and ACCC enforcement, and what factors explain their different perceptions of deterrence.
- To What Extent do Third Parties Influence Business Compliance Management Behaviour? (2008) Journal of Law & Society 35(3): 309-340 (Vibeke Nielsen and Christine Parker)
- The Pluralization of Regulation" (2008) Theoretical Inquiries in Law 9(2): 348-369 (Christine Parker). This article looks at the competing but complementary roles of Selznick's responsive law and Teubner's reflexive law in providing a conceptual basis for the way regulation scholars have recently expanded the concept of regulation to cover informal and non-state based means of regulation.
- The Two Faces of Lawyers: Professional Ethics and Business Compliance with Regulation (2009) Georgetown Journal of Legal Ethics 22: 201-248 (Christine Parker, Robert Eli Rosen and Vibeke Nielsen).
- Corporate Compliance Systems: Could They Make Any Difference? (2009) Administration & Society 41(1): 3-37 (Christine Parker & Vibeke Lehmann Nielsen).
- Is Anyone Out There Listening? Trade Practices Law Journal, 17, 2009, 106-122 (Christine Parker and Vibeke Lehmann Nielsen). This research found that businesses that receive their awareness of trade practices compliance form media have a greater sense of normative commitment to comply while those who receive their awareness from lawyers have a greater sense of deterrence.
- Testing Responsive Regulation in Regulatory Enforcement Regulation and Governance (2009) 3, 376-399 (Vibeke Lehmann Nielsen & Christine Parker)
Work in Progress
- Enforceable Undertakings in Action - Report of a Roundtable Discussion with Australian Regulators (Robert Johnstone and Christine Parker) (working paper, February 2010)
- Deterrence and the Impact of Calculative Thinking on Business Compliance with Regulation (Christine Parker and Vibeke Lehmann Nielsen)
- Negotiating Enforcement and Sanctioning in Regulatory Capitalism: The Need for Problem-solving Courts (Christine Parker). Presented at symposium on New Governance and the Business Organization at University of British Columbia, Vancouver, Canada, 26-27 May 2009.
- Mixed Motives: Economic, Social and Normative Motivations in Business Compliance (Vibeke Lehmann Nielsen & Christine Parker) (draft, February 2010)
- The Explaining Compliance Project Book (edited by Christine Parker and Vibeke Nielsen; to be published by Edward Elgar in 2011). We live in an age of regulatory capitalism where both markets and regulation of markets proliferate. This proliferation of regulation puts a demand on social science to understand, explain and predict how and why those who are the objects of regulation respond to it, or fail to respond to it. The relations between corporate power, state power, and civil society are fundamental issues in our social, economic and political worlds at the national, transnational and global levels. Research that uncovers whether and how the regulation of corporate capitalism "works", and uncovers the power relations, values and goals represented in the way that compliance is constructed should be a core concern of social science theory-building.
This project and book which will bring together for the first time the most significant empirical research that seeks to explain why business comply or do not comply with legal, voluntary and transnational regulatory regimes. The body of the book will include specially commissioned chapters from the leading researchers of business compliance outlining what their research has found and how their findings contribute to or question the overall theoretical project of explaining business compliance with regulation.Contributors include Lauren Edelman, Neil Gunningham, Fiona Haines, Bridget Hutter, Bob Kagan, Peter May, Matthew Potoski, Aseem Prakash, Susan Silbey, Sally Simpson, Tom Tyler, Soren Winter.
Christine Parker's Earlier Papers Relevant to this Project
- Restorative Justice in Business Regulation? The Australian Competition and Consumer Commission's Use of Enforceable Undertakings Modern Law Review 67(2), 2004, 209-246 (Christine Parker)
- Regulator-required Corporate Compliance Program Audits Law and Policy, 25(3), 2003, 221-244 (Christine Parker)
- Regulating Self-regulation: The ACCC, ASIC, Competition Policy and Corporate Regulation in Stephen Bell (ed), Economic Governance and Institutional Dynamics, Oxford University Press, South Melbourne, 2002, 244-261 (Christine Parker)
- Compliance Professionalism and Regulatory Community: The Australian Trade Practices Regime Journal of Law & Society, 26(2), 1999, 215-239 (Christine Parker)
- Evaluating Regulatory Compliance: Best Practice and Standards, Trade Practices Law Journal, 7(2), 1999, 62-73 (Christine Parker)