On 3 August 2017, his Honour Justice M A Wigney of the Federal Court of Australia released a summary intended to ". . . assist in understanding the reasons for imposing the sentence" in the matter of, Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha  FCA 876. The reasons for deviating from the traditional practice of delivering reasons or remarks on sentence in a criminal matters orally were described as being twofold by his Honour: firstly, the length and complexity of the case; and secondly, the fact that:
The case involved the Japanese based shipping company, Nippon Yusen Kabushiki Kaisha Ltd (NYK), who was convicted of cartel conduct and as a result, fined $25 million by the Federal Court. The cartel involved collusion in fixing the freight rates and market shares for the international shipping of motor vehicles to Australia.
Part of a global logistics and bulk shipping group based in Japan having over 33,000 employees, NYK had "Car Carrier Group" within it’s bulk shipping division providing ocean transport services supplying new passenger cars, trucks, buses and commercial vehicles from overseas manufacturers into Australia.
Dating back as far at February 1997, NYK had established an arrangement with other global vehicle shipping companies, having the effect that they would not seek to alter their existing market shares of cargo from manufacturers or otherwise try to win existing business from each other (the arrangement was a cartel referred to as the "Respect Agreement"). In the period from 24 July 2009, the point at which legislation criminalising cartel conduct commenced in Australia was introduced, and 6 September 2012, the time when Japanese and United States authorities raided the premises of NYK and a various other shipping companies - NYK gave effect to the cartel arrangement with other global shipping companies and their subsidiaries.
In that period, three separate cartel provisions relating to fixing freight rates, bid rigging and customer allocation were undertaken, involving six different shipping routes for vehicles to Australia, from India; Thailand; Japan; Indonesia; North America, and Europe; and shipping services supplied to 10 vehicle manufacturers. Offences occurred over a three year period during which time 69,348 new vehicles were imported into Australia through contracts entered into as a result of bids affected by NYK's conduct.
In the ensuing proceedings, NYK co-operated with the Australian authorities and pleaded guilty to one "rolled-up" count of giving effect to cartel provisions, contrary to section 44ZZRG(1) of the Competition and Consumer Act 2010 (Cth) - an offence for which the maximum penalty is $100 million.
In arriving at an appropriate sentence his Honour said that:
Looking at sentencing in particular, his Honour was of the view that, it was the court's task to impose a sentence appropriate in all the circumstances of the offence and that since the offender was a corporation, not a natural person, that sentence must comprise a fine, and that the fine must not exceed the statutory limit of $100 million. Further, in considering the appropriate sentence in any criminal case, the Court is required to assess and have regard to a broad range of relevant factors and considerations. Of this his Honour says:
About the cartel conduct his Honour stated:
In his sentencing statement, his Honour also noted that but for its early guilty plea and co-operation, the fine for NYK would have been $50 million.
The Deputy Director the CDPP Shane Kirne is quoted on the agencies website as, describing the case as
Speaking at a Law Council of Australia Competition and Consumer Committee Workshop in Melbourne at the weekend (5 August 2017), ACCC Chairman Rod Sims said that the verdict ". . . vindicates the increased dedicated resources the ACCC has allocated over the past three years to cartel investigations" saying also that:
Mr Sims indicated that the NYK case was one of several referred to CDPP by the ACCC and that once those were assessed, further prosecutions might be expected. Mr Sims also pointed out that the ACCC had built up its expertise in investigating such matters and would be devoting even more resources to the issue of cartel investigations.
While the NYK decision is to be applauded, there is the view that possibly the punishment for cartel offences in Australia is perhaps not as severe as it should/could be. In an interesting article on the topic, The Conversation points out that, the highest penalty ever awarded for cartel like conduct was in the Visy case in 2007 resulting in a $36 million fine, whereas, in Europe for example fines in the order of €896 have been imposed. The Conversation states
This matter however, is in the sights of the current Federal Government, who it is reported, have in the recent Federal Budget committed to bringing maximum fines for breaches of the consumer protection laws into alignment with those applicable to competition law breaches.
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Commonwealth Director of Public Prosecutions v Nippon Yusen Kabushiki Kaisha  FCA 876 (Summary - Justice M A Wigney, 3 August 2017)
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