ACCC ramps up fight against cartel conduct
This commentary by Marie Khoury
The ACCC has recently secured two notable wins in its program of cartels enforcement, with the Full Federal Court dismissing two separate appeals from BlueScope Steel and Delta Building Automation.
What are cartels, and why are they bad?
A cartel is when businesses agree to act together, instead of competing with each other.
It is illegal for businesses to agree to act together in a cartel instead of competing. This is because cartels:
· restrict healthy economic growth;
· drive up prices;
· reduce innovation and investment; and
· attempt to increase members’ profits, while maintaining the illusion of competition.
There are 4 forms of cartel activity. These are price fixing, sharing markets, rigging bids and controlling output.
Individuals and businesses involved in a cartel risk heavy criminal and civil penalties.
BlueScope Steel fined $57.5M
Australia’s largest flat steel manufacturer, BlueScope Steel Limited (‘BlueScope’), has failed to overturn findings by the ACCC that it tried to create a price-fixing cartel.
BlueScope is now liable to pay a penalty of $57.5m – the largest ever imposed in an ACCC cartel case.
The background is as follows:
· in August 2019, ACCC brought civil cartel proceedings against BlueScope alleging that its former general manager, Jason Ellis, and other BlueScope representatives induced eight competitors to engage in cartel conduct which potentially reduced-price competition in the Australian flat steel market and consequently raised product prices.
· In December 2022, the Full Federal Court affirmed that, from September 2013 to June 2014, BlueScope and its ex-general manager, Jason Ellis attempted to induce eight steel distributors in Australia and an overseas manufacturer to execute agreements fixing and raising the pricing level for flat steel products supplied in the country. The Full Court found that Ellis, on BlueScope’s behalf, approached multiple competitors and tried to induce them to enter a contract, arrangement, or understanding with a cartel provision for distributors to use BlueScope’s pricing information as a benchmark when pricing their flat steel products.
· In August 2023, the Federal Court ordered BlueScope to pay a $57.5m penalty. Ellis was also personally fined $575,000 for his role in the conduct.
On 29 August 2025, the Full Federal Court upheld the record $57.5 million penalty against BlueScope.
The Court rejected BlueScope's argument – that the price list was no more than an intention at a benchmarking strategy – stating that by talking to all competitors about the price list, it was clear that they were trying to reach a consensus as to what prices to charge.
Seeking a commitment back from the competitors was not necessary. Rather, the mere fact these conversations occurred was enough to determine that BlueScope was attempting to induce an understanding to fix prices.
Delta Building Automation fined $1.5M
In a separate ruling (also delivered on 29 August 2025), the Full Federal Court dismissed an appeal by Delta and its former general manager, Timothy Davis, against an earlier finding that they attempted to rig a tender at the National Gallery of Australia.
Delta and Mr Davis were fined $1.5 million and $120,000, respectively.
The Federal Court had previously found that Mr Davis met with a competitor on 18 December 2019 at a café and offered him money. The competitor rejected the offer.
On appeal, Delta argued that, in offering payment, Mr Davis was not trying to control the outcome of the tender process nor say that the competitor should not bid. It also argued that Mr Davis did not specify the ways in which the bid could be rigged instead he simply offered money.
In dismissing the appeal, the Court upheld the primary judge's finding that the "statement of confidence" from Mr Davis was intended to undermine the competitor's belief that they could win the tender and therefore make him more prone to accepting the payment.
Acting Chair Catriona Lowe reiterated the ACCC’s commitment to its fight against cartel conduct as follows:
“Enforcing cartel laws is an ongoing priority for the ACCC. Any business or individual that attempts to enter collusive agreements with competitors risks significant penalties, even if attempts to collude and breach competition laws do not come to fruition.”
Recent proceedings against ALDI suppliers and executives
The ACCC has also very recently commenced separate civil proceedings in the Federal Court for alleged cartel activity – this time four suppliers and three senior executives for alleged price fixing while supplying fresh vegetables to ALDI, in alleged breach of cartel laws.