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  • The recent judgment in BlueScope Steel considers a rarely litigated provision of the Competition and Consumer Act 2010 (Cth), being s 76(1)(d) which concerns ‘attempts to induce’ a contravention.
  • BlueScope Steel is likely to be relied upon by the ACCC in prosecuting future ‘attempts to induce’ cases.
  • The decision should also be considered in light of the recent and significant increase in civil penalties applicable to contraventions of the CCA.

The Federal Court’s recent decision in ACCC v BlueScope Steel Limited (No 5) [2022] FCA 1475 (‘BlueScope Steel) considers what is required to establish an ‘attempt to induce’ a cartel arrangement or understanding. The decision also provides a new interpretation of existing law that the ACCC is likely to rely on to prosecute ‘attempts to induce’ cartel conduct in the future.

Attempted cartel conduct – overview

The Competition and Consumer Act 2010 (Cth) (‘CCA’) prohibits a corporation or person from making a contract, arrangement or understanding that contains a cartel provision, or giving effect to such a cartel provision (ss 45AJ and 45AK CCA (civil) and ss 45AF and 45AG CCA (criminal)).

It is also a breach of the CCA to attempt this conduct. Two provisions of the CCA deal with attempts in respect of the civil cartel prohibitions:

  • s 76(1)(b): where a person ‘has attempted to contravene such a provision’; and
  • s 76(1)(d): where a person has ‘attempted to induce, a person, whether by threats or promises or otherwise to contravene such a provision’.

Section 79 of the CCA prohibits criminal attempts.

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