ACCC’s new penalty guidelines – some queries

The ACCC has issued new penalty guidelines – Guidelines on ACCC approach to penalties in competition and consumer law matters

Three queries from my perspective

One, while the guidelines say that there will be cases where a penalty may result in the contravenor becoming insolvent, but the penalty is no greater than is necessary to achieve the objective of general deterrence, this penalty is to no effect financially, as it will generally not be a provable debt in the winding up.

Two, the guidelines do not explain that the ACCC will seek a penalty against an already insolvent company. This is also to no effect financially, though reasons of general deterrence do support it.  While promotion of its penalty outcomes is necessary and valid, the ACCC should explain the limited outcome against a company in liquidation. “Record penalties” imposed … against insolvent companies – Murrays Legal

Three, the ACCC will often pursue the liquidated company and not the individuals behind it.  In one matter, the Judge, while expressing regret that the company was in liquidation, went on to express a “further regret … that no individual associated with [the company’s] conduct is being made accountable”. This latter regret in particular extended to the company’s former CEO “who is not a party to the proceeding and is therefore not able to be made the subject of any liability or other adverse findings against him in person, or any related penalty. That is so despite his conduct forming an important part of basis for [the company’s] liability …”. Unconscionable and immoral corporate conduct – nothing personal – Murrays Legal


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