[Also posted at Online Opinion]
Richard Pratt, billionaire, philanthropist and head of the Visy packing industry, died on April 28, 2009. The day before he died, the Federal Court ruled that a large part of the evidence against Mr Pratt in relation to evidence he had given about a price-fixing cartel was inadmissible. At the same time, the DPP abandoned criminal proceedings against him. In what some saw as an attempt to save face, the DPP did not cite the exclusion of key evidence as a reason for abandoning the case, instead citing Mr Pratt’s ill-health as the sole reason. Nonetheless, Mr Pratt was reportedly relieved to be told that charges were withdrawn before he died. It has been a fascinating and terrible legal battle, a battle literally “to the death.”
Civil proceedings
The criminal charges followed on from a civil ruling by Heery J against Visy and its senior executives (including Mr Pratt) for breaches of s 45 of the Trade Practices Act arising as a result of covert price-fixing and market sharing engaged in by Visy and Amcor between January 2000 and October 2004. Heerey J was scathing about the actions of the Visy senior executives, stating at [315]:
The cartel here went on for almost five years. Had it not been accidentally exposed, it would probably still be flourishing. It was run from the highest level in Visy, a very substantial company. It was carefully and deliberately concealed. It was operated by men who were fully aware of its seriously unlawful nature.
The court imposed record civil penalties of $36 million upon Visy. Penalties were also imposed on former chief executive Harry Debney ($1.5 million) and former general manager Rod Carroll ($500,000). Mr Pratt was not penalised in his individual capacity because by punishing Visy, the Court was effectively punishing Mr Pratt. A class action and individual actions for damages were also brought by customers against Visy.
What is the rationale behind punishing companies which collude? Adam Smith, the father of modern economics, was not a fan of cartels, saying in The Wealth of Nations:
People of the same trade seldom meet together, even for merriment and diversion, but the conversation ends in a conspiracy against the public, or in some contrivance to raise prices.
Although the ACCC did not allege Visy caused specific losses by reason of the cartel, after the 2007 decision, Mr Samuels said:
It was a premeditated fraud on Australian consumers. Anyone in the past who has bought a block of chocolate or a piece of fruit packed in a box made by Visy or Amcor has probably been ripped off.
The argument is essentially that, by lessening competition, collusive cartel members raise the price of goods for consumers for their own benefit. Therefore government regulates company collusion. I had always understood cartels to be an effective theft from the consumer. I have speculated before about the possibility of one of my favourite beasts, a profit-stripping remedy, being used to strip Visy and Amcor of ill-gotten profits gained through price-fixing, and then asking the court to administer the funds in a cy pres scheme for the benefit of the public (e.g, to help people who are struggling to afford food and basic necessities).
Thus, I was really interested to read Sinclair Davidson’s post over at Catallaxy on the issue. Apparently it does not follow that all economic rationalists or libertarians applaud government measures to prevent collusion. In comments, Sinclair links to a piece which argues that government actions against cartels are ineffective and anti-competitive. According to this article by Michael DeBow:
Those new critics who argue that price fixing should be legal have lodged two kinds of objections to the law: economic objections to the neoclassical economic theory typically employed to justify the law, and philosophical objections to the operation of the law. Several of the new critics are identified with the “Austrian school” of economics, which counts Ludwig von Mises and Nobel laureate Friedrich A. von Hayek as its most important twentieth century practitioners. The philosophical objections raised by Armentano and Smith are, in essence, of libertarian origin.
So there are arguments (of which I was not previously aware) to the effect that cartels do not actually result in price rises anyway. In that regard, I will be really interested to see how the various parties to the class action against Visy and Amcor calculate their losses, and whether any gain-based remedies are alleged.
Criminal proceedings
The 2007 decision of Heery J was based upon an Agreed Statement of Facts in which Visy admitted that it had engaged in the alleged conduct. However, the ACCC had previously obtained oral evidence from Mr Pratt in 2005 pursuant to a notice to appear under s 155(1)(c) of the Trade Practices Act.
Last year, the ACCC commenced the criminal proceedings against Mr Pratt, alleging four contraventions of s 155(5) of the Trade Practice Act, which prohibits giving false and misleading information under a section 155 notice. If he had been convicted of all four counts, Mr Pratt could have faced a maximum prison sentence of four years.
The ACCC alleged that Mr Pratt gave false evidence during his examination before the ACCC when he said that he did not recall having conversations with Russell Jones, Amcor’s Managing Director at the time, about the existence of an agreement between Visy and Amcor. The ACCC argued that by consenting to the Agreed Statement of Facts, Mr Pratt had admitted to having been part of the meeting, when he had previously denied this.
Mr Pratt’s lawyers argued that the Agreed Statement of Facts did not constitute an admission on Mr Pratt’s part, and should not be used for criminal proceedings. Here, it is worth noting that Heery J stated at paragraph [1] of his 2007 judgment:
The parties have tendered an agreed statement of facts. This means that the parties agree that, for the purposes of this proceeding, the facts in this statement are not to be disputed: see Evidence Act 1995 (Cth) s 191. The parties say that this agreement is not to be taken as an admission to those facts outside the context of this proceeding. [emphasis added]
Mr Pratt’s legal team also received advice from former High Court Justice Ian Callinan QC indicating that the reliance on the statements was impermissable:
In my opinion, this oppressive, improperly and ill-conceived prosecution should be discontinued.
The prosecution is, for the reasons I have stated, tainted with improprieties. It should not proceed, and the DPP should terminate it. It is my firm view that reliance upon the agreed statement of facts by any Commonwealth agency in making a decision to prosecute is not proper in the circumstances.
Further, Mr Pratt’s lawyers also argued that the criminal proceedings constituted an “abuse of process”, with the ulterior motive being a personal crusade by Graeme Samuel, the head of the ACCC, to criminalise cartels (a measure for which Mr Samuel had again called after the 2007 Visy case).
They also said that the ACCC had essentially set a “honeytrap” by getting Mr Pratt to admit he had met with Mr Jones, promising that this evidence would not be used against him. They then attempted to use that evidence against him in criminal proceedings. If they had intended to bring criminal proceedings, they should have done so at the outset, instead of waiting, and using the civil proceedings as an impermissable method of gathering evidence for the criminal proceeding.
The criminal charges by the ACCC has led to criticism. Mr Pratt believed that Mr Samuel had a personal vendetta against him, and others noted that they had fallen out long before the ACCC proceedings, when the two men were involved with opera. Others believed that the ACCC’s pursuit of Mr Pratt was entirely reasonable.
Problems with the ACCC’s case
There are a number of difficulties with the decision to pursue Mr Pratt for criminal conduct. First, Mr Pratt and Visy were not the only wrongdoers in the civil case. Only Visy and its executives were pursued by the ACCC because, as Heerey J explained at [8] of his judgment:
…in late 2004 Amcor approached the Commission and admitted liability. The Commission applied its Leniency Policy for Cartel Conduct, published in 2003, under which the first party to disclose a cartel of which the Commission is unaware will receive an immunity, provided it is not the “clear leader”, gives full and frank disclosure, and continues to cooperate with the Commission. In unrelated litigation Amcor had sued former executives and obtained a Court order for a search of their premises. Incriminating material, including tape recordings of conversations, was discovered and on its solicitors’ advice Amcor approached the Commission.
Secondly, it seems that neither Visy, Mr Pratt, Mr McHugh QC (the arbitrator) nor Heerey J was told that the ACCC was intending to use the Agreed Statement of Facts in criminal proceedings. Heerey J’s judgment explicitly states that the parties agreed that the Agreed Statement of Facts would not be used in any proceeding other than the civil penalty proceeding. Therefore, the ACCC’s decision to use it in subsequent criminal proceedings looks duplicitous, particularly in the context of allegations by Mr Pratt’s legal team that while the 2007 proceeding was being settled, the ACCC was already plotting laying criminal charges.
Mr Pratt’s lawyers said that he maintained his innocence and signed the statement of agreed facts only in order to expedite a settlement deal.
Mr McHugh (another former High Court Judge) said that during the mediation, Mr Pratt again denied meeting Mr Jones, but Mr Pratt was told by Mr McHugh that he would have difficulty proving his word against Mr Jones’ word, as a court would want to know why Mr Jones would make something like that up. Mr McHugh also told the prosecution that the main concern of Mr Pratt was as to how to protect his reputation. Ryan J excerpts a section of Mr McHugh’s statement at [30] of his judgment which states:
Neither the ACCC executives nor any of their legal advisers said to me at that time (or any time) that they had in mind an intention, or considered it a possibility that the ACCC might prosecute Mr Pratt under s 155 of the Trade Practices Act or refer that issue to the Commonwealth DPP for advice.
The ACCC did not in my presence inform Mr Pratt or his legal advisers, or say to me, that it had in mind an intention, or considered it a possibility, that it might prosecute Mr Pratt under s 155 of the Trade Practices Act or refer that issue to the Commonwealth DPP for advice. Had the ACCC informed me of such risks or possibilities, I would have regarded that as a relevant matter to put to Mr Pratt in considering whether to compromise the civil Penalty Proceeding.
Mr McHugh infers that the advice he would have given to Mr Pratt with regard to the wisdom of settling the proceeding would have been quite different if he had known about the possibility of prosecution.
Third, doubts were cast on the state of Mr Pratt’s health at the time when he signed the Agreement Statement of Facts in 2007. Mr McHugh’s
statement said that “During my time in the Pratt room, Mr Pratt was not engaged with the process. He did not act as I had expected that he would, given his status as a leading businessman, and he appeared distracted.” It was inferred that his health problems contributed to his lack of engagement.
Ultimately, Ryan J decided the case simply on the matter of whether or not the Agreed Statement of Facts was admissible. His conclusion, at [83], was that:
The definition of “agreed fact” in s 191 of the Evidence Act, because of its terms, is not limited to a fact which is true or which the parties believe to be true. It includes a matter capable of being the subject of a finding by a court or tribunal which the parties agree, for the purposes of the proceeding, is not to be disputed. It follows that the inclusion of a statement in an agreed statement pursuant to s 191 is not a representation of fact for all purposes. It is no more than a representation by each party to the proceeding that he, she or it will not dispute the asserted fact in that proceeding. In other words, the only representation in the sense used in the definition of “admission” in the Evidence Act is as to the intention or state of mind of the parties to the Agreed Statement.
No one comes out of this saga looking good. Mr Pratt admitted that he contravened anti-cartel laws in the original proceeding, and his reputation was severely tarnished as a result.
However, the ACCC’s subsequent pursuit of Mr Pratt has been a public relations disaster, with friends claiming Mr Samuel hounded Mr Pratt into an early grave. And Mr Pratt’s friends include some very powerful people on both sides of politics. It is noteworthy that Prime Minister Kevin Rudd was among those who chose to visit Mr Pratt at his bedside last week. As this article by Katharine Murphy in The Age states:
Head of Government visits to a man who is being prosecuted by the Government via one of its regulators — what a bizarre position for Mr Samuel to find himself in. It’s hard to think of a precedent.
It certainly suggests that public opinion is on the side of the late Mr Pratt. Was the Prime Minister tacitly disapproving Mr Samuel’s actions by his visit?
Meanwhile, at Larvatus Prodeo, Kim draws parallels between the treatment of Mr Pratt and Marcus Einfeld QC, another respected figure who recently fell from grace. Personally I think there are important distinctions between the two cases. Mr Pratt was never convicted of a crime, although he did concede that he and his company were liable for a civil penalty (an entirely different thing). By contrast, Mr Einfeld pleaded guilty to a crime, and unlike Mr Pratt, he had actually sat in judgment on a person who committed perjury and spoken of the heinous nature of that crime. Nonetheless, I think both cases are tragic. Both are men who have done good things in their lives, but have tarnished their reputations at the end of their lives by their deeds. The difficulty in both cases is weighing up how far a contravention of law should be able to overshadow a person’s many good deeds.
Although Mr Pratt has died, and the criminal charges have been withdrawn, this saga is certainly not closed. The class action against Amcor and Visy continues. No doubt the actions of Mr Pratt, Mr Samuel and the ACCC will continue to be scrutinised. Watch this space…
33 Comments
“although he did concede that he and his company were liable for a civil penalty (an entirely different thing). ”
Didn’t he concede to things happening (facts) that may constitute criminal offences?
Various pollies crawling all over the matter and undermining the regulator is not only improper (if he’s not doing his job as regulator properly he should have been removed) but quite malodorous.
We, and I would have thought the high end of town in particular, need the perception that the regulator can get on with their job and it won’t make it all different that their target has one of the two highest paid litigation partners in Australia and a bevy of influential friends to lobby against them.
Again, if the ACCC was out of line, objectively speaking, that should have been resolved, or be resolved, through a different mechanism than the PM implicitly pushing the regulator out of the inner court.
Nice summation, but I think your critiques of the criminal prosecution follow the Pratt line (and the many misleading statements put out by his camp) too closely:
1) Why wasn’t Amcor prosecuted? The prosecution was about lying, not the cartel. Amcor’s boss, Jones, came clean about his involvement in the Cartel, while Pratt didn’t. Rather, he accused Jones of being a liar (when Jones said he met Pratt in a pub in Richmond.) If Pratt was lying about that, he deserved to be prosecuted, right?
2) It’s a bit rich, isn’t it, to suggest that the ACCC should have warned Pratt that he might be prosecuted for statements made on oath that he later said weren’t true. Pratt had dozens of top class lawyers not to mention the best High Court judge in recent decades on his side. The mystery is why they somehow all failed to point out the possibility of a prosecution to their client. Is it normal these days for lawyers to keep quiet about potential criminal prosecutions unless they receive a letter from the prosecutor giving them a heads-up?
It’s also a bit rich for former High Court judges to be crying crocodile tears about the ACCC’s supposed lack of warning to Pratt. The High Court ruled in 2007 that police don’t have to warn people (unless they are in custody) that what they say may be given in evidence. In R v Em, they approved the police taking a teenager to a park and telling him they just want to find out about some evidence, when in reality they were covertly bugging the conversation just to get Em speaking on tape (something he’d previously refused to do.) Why are all these ex-High Court judges lining up to attack the ACCC for its failure to give an obvious warning to a canny businessman with fifty lawyers, but aren’t going public with the injustice done to Em, a gormless lad with nary a lawyer, who is currently serving decades in the clink.
3) Health problems? Maybe. But you do know, don’t you, that every single wealthy criminal defendant in history has played the health card. Funny how these health problems never come up when they are making business decisions or chairing footy clubs. I don’t think we should just assume that his recent severe problems stretched all the way back to 2007.
As for the admissibility ruling, unfortunately Ryan J got the law totally wrong. If Pratt’s words weren’t representations – a dodgy ruling itself – then they simply weren’t barred by the hearsay rule. The only remaining grounds for exclusion (relevance and prejudice) were never addressed. Personally, I think the grounds for exclusion were very thin and the prosecution’s case should have been addressed on its merits. But we’ll never know, as Ryan decided on a technicality and botched it. He should never have rushed to judgment.
Finally, on Pratt v Einfeld. What’s worse? Falsely accusing a dead woman of a traffic offence, or falsely accusing a living man – who you colluded with – of being a liar (when he came clean about the collusion?) Pratt’s lie isn’t (and now can’t be) proved to a criminal standard. But don’t you think McHugh had a point when he told Pratt that Jones had no reason to falsely claim that he met Pratt in a Richmond pub (wheres Pratt had every reason to falsely claim that he didn’t meet Jones?)
Armagny, that’s the thing – cartels have not yet been criminalised – it’s “just” a civil penalty. The allegedly criminal behaviour was the false statement to the ACCC under the s 155 notice. So Pratt did do wrong, but the original contravention to which he conceded was not criminal.
I am guessing one of the reasons Samuel has been so dogged in his pursuit is that he’s not going to be put off simply because Pratt had friends in high places and resources — justice is blind, and pursues the rich and powerful as much as it pursues anyone else.
Jeremy, very interesting comments.
1) Re Amcor – I should have been clearer – Amcor shouldn’t have been prosecuted, but it does seem to have gotten off a lot more lightly – perhaps because it ‘fessed up.
If there’s something to be taken from both the Einfeld and Pratt stories it is this – if you’ve done wrong, ‘fess up early rather than obfuscate, and everything will be a lot easier.
2) Your comment about the Em case:
A very good point. Nonetheless, I still think that it doesn’t look good for the ACCC to approach things as they did to Pratt.
3) Health problems – yes, my husband and I were discussing the Skase case. Also the Bond case – where he said he had a low IQ?
Poor Ryan J, at the end of the judgment you definitely get a sense that he was rushed, and he says explicitly that he reached his conclusions “with some diffidence”.
Re Pratt vs Einfeld – I was working from the standpoint that he is innocent until proven guilty, whereas we know Einfeld was guilty. We’ll never know the truth of the matter now. If Pratt had been proven to lie or had admitted having lied, then he deserves as much opprobrium as Einfeld.
He gave explanations as to why he signed the Agreed Statement of Facts despite the fact that this conflicted with his previous statement pursuant to s 155 – it all comes down to how convincing one finds those reasons.
“The allegedly criminal behaviour was the false statement to the ACCC under the s 155 notice. ”
Ay. Corrected.
*runs off to get more coffee*
Is Visy still guilty of price fixing?
Tony – yes, absolutely, Visy has conceded that it did price fix – not so much “guilty” as “liable” (although civil penalties occupy a strange place between criminal and civil law)
Thanks, LE.
Does that then mean when Pratt stood in front of the cameras on the Channel 10 News file footage on Wednesday (sans yellow jacket) and said something like “I unreservedly accept responsibility for the crime”, he is still complicit in the dodge? If not outright “liable”.
I have diligently researched my imagination and have discovered that prior to making that admission Pratt had consulted exactly 12,462 lawyers.
Tony, yes Pratt is still liable for the price-fixing. He did not have to pay a penalty personally, but paid a penalty through Visy. But he did concede in the civil proceedings that he was complicit in the price-fixing. The question is the extent to which he was complicit – the evidence by the former Amcor executive suggests that he was fully complicit and knew all the details, whereas Mr Pratt’s account suggests he was less aware of what was going on.
LOL!
Dick Pratt was a champion price-fixer all right and so was his dad. They also fixed the price of the miserable wages paid to the itinerant Aboriginal, Italian and other casual workers that built the business in Shepparton in the first place and pocketed the profits they did not themselves produce.
Corporate criminals of the first order both of them.
Actually I think part of the public reaction to this is caught up in the notion of confession, and when it is appropriate to confess.
So there may have been a feeling that once Pratt confessed to the civil hearing, that was “enough” – after all, Amcor and its people had been let off fully after their confession. By contrast, the ACCC did not feel that Pratt had adequately owned up to his personal complicity in the price-fixing saga, and wanted to force him to do so.
The difficulty in both cases is weighing up how far a contravention of law should be able to overshadow a person’s many good deeds.
And related to this, how many good deeds would he have had the power to do if he wasn’t capable of being ruthless in the first place?
Perhaps this kind of fall from grace happens to great people who do good deeds precisely because of that, Bruce. These people like Pratt and Einfeld wouldn’t have power to do good things if they weren’t ruthless and focussed in certain measure.
Actually, perhaps it’s also related to the entrepreneurial personality – so many of these successful people have spectacular downfalls!
I can feel some Nietzsche coming on. :O
In today’s Age:
Fantastic post, Legal Eagle! I really enjoy your blog.
Also, May I ask whether you are going to do a piece on the James Hardie litigation?
Tony, that is a very funny comment. I’ve been enjoying Oxford’s ever so slightly screwy May Day celebrations, and came back to see Carlton put in their place. Very good indeed.
As is this piece, which does a super job of setting out all the issues.
Tony – LOL – although I should be careful – it’s true in my case that, “Some of my best friends are Carlton supporters”.
Still, whenever my husband wants to annoy me, he says that his team today is Carlton (he is “non-aligned” on account of being an interstate boy).
Mind you, I can’t tease too much – my poor Tigers are so wretched that there’s plenty of fun to be had at my expense.
Biggest corporate fine in Australian history: what was it, $44 million or so?
They paid up, civil case closed.
Amcor execs fessed-up in the way that a murderer fesses up first so that he can cope a plea while letting his co-accused take the death penalty. They knew they were done, spent a week, or a weekend, prepping their confessions and then trundled off to the ACCC.
Pratt was assured that his admissions would NOT be used to launch any criminal proceedings. That proved to be an outright lie.
Good faith by anyone in this saga: nope, none.
Apart from that: seriously folks, ruthless, evil, business people, screwing the little people, etc – how do you think business works, large and small? Surely you’ve all held jobs in the real world?
It might not involve price fixing, which, as already noted, is not a criminal offense in Australian in any case, but many, many, small business owners screw over their staff and their suppliers; big business is more dumb than ruthless, except to each other, that is, “office politics”, which is brutal and costly to every business, and therefore to every consumer. Worse people have done worse things than Pratt, they just don’t happen to be billionaires. Is that latter the reason for the bitter, twisted judgments?
Financial impact of cardboard prices? Bugger all.
The price of a thing tells you how much people are prepared to pay for that thing at a particular time. That’s what a free market is, actual behavior, not some fantasy economy or some hypothetical price that people believe they would feel all warm and fuzzy about.
Sorry – a few too many typo’s in preceding comment. Too tired to proof read. My bad (and lazy!).
“Pratt was assured that his admissions would NOT be used to launch any criminal proceedings. That proved to be an outright lie.”
Caz, I’ve read the Federal Court judgment setting out these events a couple of times (but it’s long and convoluted, so I might have missed something.) But I cannot find any claim that Pratt was given any such assurance. To the contrary, at [16], there’s a discussion of how the ACCC officers discussed the possible perjury prosecution and resolved that they would refuse to include those potential charges as part of the civil settlement.
Surely, if it was true that Pratt had been lied to by the ACCC, then that would have been included in the evidence put forward at the admissibility hearing? There’s no doubt that the ACCC didn’t volunteer the potential prosecution with Pratt. But nor did Pratt’s team seek (and nor were they given, it seems) any assurances about that prosecution. I don’t know, but chances are that they didn’t want to ask, in case they were given an explicit ‘no’.
You may well be right that Pratt’s cartel was no big deal. I have no idea. But what a pity, if it was such a little thing, that he thought it worthwhile to accuse his co-conspirator of lying and to do so on oath, rather than fessing up like Amcor did. Was he badly advised? Or arrogant? Or sick? Regardless, there was credible evidence that he lied on oath and there aren’t – and shouldn’t be – any ‘get out of jail free’ cards for that.
.
Jeremy, the thing is (as I see it) is that it’s still Pratt’s word against Jones’ word. As you say, there’s less reason for Jones to make it up than there is for Pratt to deny the allegation. But you never know with these kind of things. Maybe Jones was mistaken. Maybe Jones maliciously wanted to drop Pratt into it. Maybe Jones wanted to impress the ACCC and ensure they focused on someone other than himself. To know, I’d really have to hear testimony from the two men and make up my own mind. Impossible now.
I’d be more comfortable with the allegations of perjury if there was other evidence to back up Jones’ statement. For example, in the Einfeld case, there was a great deal of evidence that he had been driving the car (CCTV footage, mobile phone records, bills from restaurants etc etc). Maybe the ACCC did have that kind of evidence and that is why its pursuit was so dogged. I just don’t know.
Incidentally, your thoughts on Ryan J’s judgment show to me why the DPP withdrew the charges strictly on the basis of Pratt’s ill-health rather than on the basis of the admissibility of the evidence.
About his much-vaunted philanthropy – if he was indeed in the long-term habit of fixing prices and paying low wages, then it wasn’t exactly his money he was giving away. It was the money he’d ripped off his workers and the end-consumers – you and me. It’s not really difficult to give away other people’s money.
But hey, what do I know? He may in fact now be residing in Heaven with all the other saints.
As my mother pointed out to me yesterday, it doesn’t cost much to be generous when you’re a billionaire. Even though he gave away millions, it would have no impact on his lifestyle or wealth. And, as you say, if he did make profits from price-fixing, then he was ripping off other people to make that money.
It’s quite fitting and telling ain’t it that Australia’s third richest person made his fortune using garbage to fashion a case for holding and transporting…future garbage.
Of course Pratt and co didn’t actually invent the cardboard box. But Pratt senior did link up with a Murray River steamboat engineer who designed the machine that could spit out so many of the darn things a day and the rest, as they say, is assembly lines of mechanised human beings and more landfill than you can poke a stick at.
Jeremy needs to re-read Em, and pay attention to the bit where the evidence induced by a representation that it would not be used against the “gormless lad” was held inadmissible. Sound familiar in the Pratt context?
The ACCC’s deliberate non-disclosure to Prattt or his advisers that they were seeking criminal charges in the case – and that much is an established, agreed, fact – has a smell to it.
If Pratt “fell from grace”, it wasn’t a long drop. The criminal case is widely seen as a great injustice. Taking a second or third bite when the case was already resolved and the fine paid has been, and continues to be, seen as unfair and a bloody minded, personal vendetta, seemingly validated by the active non-disclosure.
The case isn’t comparable to Einfeld, who created new and increasingly elaborate lies, documented by him, at great length, and sustained over a period many of years.
The fall out of the Pratt case will result in less cooperation with ACCC in the future, and advisers will be far more cautious in encouraging their clients to cooperate with a body that has proven untrustworthy itself.
Glenn Wheatley threw himself at the ATO and confessed liberally and quickly, and promptly wound up in jail as a reward for his enthusiastic cooperation. Again, not a mistake others will make. This case will have the same effect for the ACCC. Someone should have paid attention to the old adage: don’t shit on your own door step. The ACCC have done themselves more damage than they did to Pratt – the latter is dead, so there’s no further fall out for him to contend with.
Amcor made ordinary margins during the entire period of the price fixing, while Visy continued to cut costs and improve their business – around 8 to 9% profit for Amcor, which Visy was making at least twice that. The Amcor executives were lazy, resting on their price fixing laurels – dumb and lazy.
Sammy needs to re-read Em and pay attention to the bit where the evidence that was induced by the police’s failure to caution Em that his words may be given in evidence (but where there was no express representation that it wouldn’t be used) was held admissible. That sounds a touch more familiar in the Pratt context, doesn’t it?
As for Caz, perhaps this case will result in less cooperation with the ACCC. But the ACCC has powers to force people to cooperate, so that’s no great cost. What this case may also result in is less lying to the ACCC, given that lies can’t subsequently be cured by a grudging mea culpa.
Also, if, as Legal Eagle points out, Jones was lying (and Pratt wasn’t), then perhaps this case will result in less bad advice from high-end lawyers to their clients to make false statements to regulators in a bid to ‘put all this nasty business behind them’.
All up, less lying all round. Hardly a bad result. Except for liars, of course, and those who believe them.
That’s a naive conclusion Jeremy, that is, your belief that business people will all suddenly become honest upstanding citizens, on the off chance that the ACCC will lie to them about opting to do them on criminal charges, once they’re done with the civil charges.
As for the last clause: “Except for liars, of course, and those who believe them.”
Unnecessarily snide.
Besides, it’s not exactly the case that only the millionaires and the billionaires of the world are the only liars. Not by a long shot. Other people don’t have their misdeeds and dishonesty broadcast to the whole world for judgment, that’s all.
LE,
re:
“It certainly suggests that public opinion is on the side of the late Mr Pratt.”
I’m never sure there is such a thing as “public opinion.” And it is certainly hard to distinguish between public opinion or even acts which appear to express it from acts which are undertaken with the intent of forming public opinion. That’s where being rich and powerful can help a lot.
Or, as with Einfeld, having lots of friends.
Funny how the two can often go together.
Also as with Einfeld, there is also the question (to mangle a metaphor or two) of the tip of the iceberg coming home to roost.
I don’t think having friends helped Einfeld in the tide or lack of tied in public opinion.
If you ran around the streets asking people whether Einfeld or Vizard or Wheatley are lovely, honest men, the salt of the earth, who were screwed over by “the powers that bedevil us all”, you wouldn’t get too many “ays”.
Ask the question about Pratt, and most would say that he lied, paid a huge price, and was subsequently screwed.
Humans in general are quite good at picking unfairness and injustice, no matter the rank of the individual in question, so long as there’s a blunt measuring stick. Anything overly nuanced is another matter altogether.
Whatever the case, people also understand the words of Honoré de Balzac: “Behind every great fortune there is a crime.” They know this, but will forgive some and not others, based on their assessment of the fairness of the end to end situation, including the moral culpability of the wealthy offender, and the level of contriteness, punishment taken on the chin, and so on.
It’s not overly complex.