Case: Australian Competition and Consumer Commission v ABB Transmission Distribution Ltd (No 2) (2002) 190 ALR 169
Outcome: cited
In the context of competition law in Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd (No 2) (2002) 190 ALR 169 (at 174 [17]) Finkelstein J said: 'In antitrust cases retribution has no real role to play. Nor does rehabilitation, but for different reasons. Those who view retribution as an appropriate theory of punishment hold that the offender must be given some punishment because he "ought" to be punished: the "an eye for an eye, a tooth for a tooth" approach to criminality. The proponents of this view see some social satisfaction in a "just" punishment, perhaps because it can be regarded as repayment to society for the violation. It might also be justified as suppressing acts of private vengeance. However, society is moving away from using a punishment for retribution even in purely criminal cases and, to my mind, it has no role to play in relation to the punishment of a corporation. One difficulty is that if punishment is to be regarded as an exercise of morality, presumably there must be some relationship between the harm intended by the criminal act and the harm inflicted on the offender. But as there is no measurable relationship between the two types of harm, there is no reasonable basis for choosing a particular penalty. Rehabilitation is a concept that has no useful role to play regarding corporations for one cannot rehabilitate a legal fiction. So, if the purpose of antitrust laws is to define certain socially intolerable conduct, deterrence must be the means by which a corporation is to be hindered from engaging in that conduct.' The general approach thus outlined is also relevant to the imposition of penalties for breach of the Act particularly as in this case, breaches of provisions designed to maintain an informed market. 93 The deliberateness of a corporation's contravening act or omission may be taken into account as a factor relevant to the risk of that corporation reoffending. That is relevant to particular deterrence. When a corporation takes a calculated risk by intentionally or recklessly failing to disclose material information to the market, it may be inferred that there is a corporate culture which encourages or, at least, tolerates or permits decision-making which expressly or implicitly weighs the benefit of non-compliance against the risk if non-compliance is detected. For such deliberate conduct, the risk associated with re-offending must be set at a high level by high penalties. It is not necessary or useful to tread upon the shifting sands of moral denunciation in having regard to issues such as intention or recklessness in fixing penalty cf however, the helpful and comprehensive discussion of the issue, albeit with a different perspective, in the context of competition law penalties by Yeung K in Securing Compliance :A Principled Approach (Hart Publishing, 2004, at Chapter 4). 94 Where non-disclosure conduct amounts to fraud by the deliberate non-disclosure of information calculated to affect decision-making by potential investors or creditors, the Court should not hesitate, as an incident of its penalty fixing process, to identify the unacceptable character of such conduct. However the continuous disclosure obligation imposes a duty not limited to abstention from intentional breach, or the avoidance of recklessness or carelessness. Its possible contraventions will cover a wide range of conduct. In such a case it is preferable to find a common principle applicable to the full range of conduct by reference to considerations of deterrence rather than super-added qualitative considerations of uncertain provenance relating to the morality of the particular contravenor's actions.