Introduction – the symbol of jail and illusions of individual accountability

Much fanfare has accompanied the introduction of jail as a sentence for cartel offences in Australia. However, little attention has been paid to the nature and limits of individual liability for cartel conduct as a principal party or on the basis of complicity. The principles and rules governing individual liability are fundamental to the application and the success or failure of the cartel legislation. They significantly affect the extent to which community or other expectations of individual accountability for serious wrongdoing can be met.

The provisions of the TPA on individual liability for cartel conduct lack a coherent design and are unnecessarily complex. They also fail to address the most difficult challenges that confront efforts to sheet home individual responsibility for cartel conduct. These problems are long-standing but are aggravated by the introduction of criminal liability.

This chapter discusses the following dimensions of individual liability for cartel conduct:

• individual liability as a principal party – see Section 6.2

• individual liability on the basis of complicity – see Section 6.3

• individual inchoate liability (attempt, conspiracy, inducement and attempted inducement) – see Section 6.4

• tacit implication and the problem of the ‘shut-eyed sentry’ – see Section 6.5

• availability of corporate liability and the problem of limited individual accountability – see Section 6.6

• ‘sidewinder liability’ for offences relating to the administration of justice, money-laundering offences and forfeiture of proceeds of crime – see Section 6.7.

The issue of indemnification is discussed in Chapter 11, Section 11.3.8.