Crikey editor Misha Ketchell writes:

It’s not 24 hours since details of the extraordinary cartel
allegations against Visy and Dick Pratt emerged, and already there’s a
hot debate about whether the ACCC did the right thing in giving
the alleged co-conspirators at Amcor immunity in return for their
cooperation.

We rang ACCC chairman Graeme Samuel this morning to ask if
it’s fair to let one crook off the hook so you can bag another – and also whether the financial
penalties for cartel activity are enough of a deterrent in the first
place.

Samuel said he couldn’t comment in any way on the Pratt case, but
he did have some interesting things to say in defence of the ACCC’s
policy of granting immunity to whistle-blowers, and also plans to toughen the
penalties for cartel behaviour.

He said the Treasurer was currently drafting laws
to introduce criminal penalties of up to five years jail for cartel
behaviour. The new laws are going to be introduced into
parliament in the new year but they won’t apply retrospectively so
they won’t have any impact on current
cases.

He said there was also legislation currently before parliament to
increase the financial penalties for cartel behaviour. Under the
current rules the maximum financial penalty is $10 million per offence.
Under the new laws it would be either a) $10 million per offence or b)
three times the amount of money made through the cartel activity (if it
can be established) or c) 10% of the annual turnover for the
whole company or corporate group.

Samuel said the tougher laws, which are part of package of reforms that also
include changes to merger rules, have been held up in the Senate but
he’s optimistic about them being passed.

He said the policy of granting immunity to cartel turncoats “has
been adopted through major jurisdictions throughout the world… The
immunity policy is a major factor
towards the detection of cartels. In the current environment we have a
large
number of cartels under investigation and more than 50% have
come to our attention
as a result of that policy,” he said.

“There’s always
going to be a debate about granting a conspirator immunity. I guess this is
part of a process that is well established worldwide and it’s an extrapolation
of plea bargaining.”

And he said granting immunity to conspirators, when combined
with tougher penalties and criminal sanctions, “shifts the cost/benefit
analysis against conspirators.”

Whatever your view of the trade-offs, he’s done well to get the case
this far. But whether he makes the charges stick against Visy and Pratt
is another matter. If he wins it’ll be a huge coup. And if he doesn’t,
the mumbles about toothless corporate regulation in this country will
continue – tougher rules or not.