Federal Court hands down first-ever sentences against individuals for engaging in criminal cartel conduct

Background

Following a joint Australian Competition and Consumer Commission (ACCC) and Australian Federal Police (AFP) investigation, the Commonwealth Department of Public Prosecutions (CDPP) brought criminal proceedings in April 2019 against foreign currency exchange business Vina Money Transfer Pty Ltd (Vina Money) in respect of breaches of s 44ZZRG (then in force) of the Competition and Consumer Act 2010 (Cth) (CCA). Vina Money was charged with making and giving effect to contracts, arrangements or understandings that contained a cartel provision, fixing exchange rates and fees for money transfer services to Vietnam as between Vina Money and two of its competitors.

Vina Money pleaded guilty on 3 February 2022 to engaging in criminal cartel conduct, specifically:

• making a contract, arrangement or understanding with its competitors Tin Vuong Pty Ltd (trading as Hong Vina Fast Money Transfer) and Eastern & Allied Pty Ltd (trading as Hai Ha Money Transfer); and
• giving effect to the contract, arrangement or understanding by notifying its competitors of exchange rate movements and then directing, encouraging or otherwise causing, them to implement a common exchange rate for Australian Dollars to Vietnamese Dong.

On 9 June 2022, Justice Abraham fined Vina Money the sum of A$1 million in respect of the conduct admitted to.

Penalties for breaching cartel provisions

Breach of the cartel prohibitions in the CCA can attract civil or criminal penalties. Cartel conduct is a serious offence carrying a maximum sentence of up to 10 years' jail or fines of up to A$440,000 for individuals, or for corporations, the greater of A$10 million, three times the benefit reasonably attributable to the cartel or, where the gain cannot be readily ascertained, 10% of the corporation's annual turnover of in the first 12 months of operation of the cartel.

At the time the charges were laid, then ACCC Chair Rod Sims commented that the behaviour was "extremely serious" and complimented the co-operation between the ACCC and AFP in enhancing the ACCC's effectiveness in enforcing the cartel provisions in competition laws.

Individuals charged with criminal conduct

Significantly in this case, five individuals (directors and/or employees of Vina Money and its competitors) were also charged with being knowingly concerned with some or all of the conduct in contravention of s 79(1) of the CCA.

Four of the five individuals accused pleaded guilty to the offences at the start of the year - three in February 2022, and the fourth in May 2022. On 9 June 2022, the Federal Court convicted each of being knowingly concerned with the cartel conduct, and sentenced them to jail time for periods ranging from 9 months to 2.5 years. Each of the prison sentences has been suspended, however, and the individuals have been released on good behaviour orders (referred to as a recognisance release order) for periods of between 1.5 to 3 years.

The proceedings remain on foot for one remaining individual accused of being knowingly concerned in the cartel. That individual has pleaded not guilty and the matter is set down for trial in August 2022.