A lot of commentators have been focusing on Wigney J's "complete shemozzle" quote from the banking cartel case (at para 9) but for me the most instructive quote is at paragraph 246:
"Those responsible for drafting the cartel offence provisions in the C&C Act – none of whom could possibly have ever set foot in a criminal trial court before – appear to have approached the drafting task as if it were akin to producing a cryptic crossword. The offence provisions, when read with the extensive definitions of the terms used in them, are prolix, convoluted and labyrinthine. When coupled with the general principles of criminal responsibility, including the extensions of criminal responsibility in Ch 2 of the Criminal Code, the complexity of the offences is multiplied. By the time the maze of provisions is worked through, it is very easy to lose sight of exactly what conduct the offence provisions are intended to bring to account and punish."This does not augur well for successful cartel prosecutions in Australia, particularly as a jury will have to work out these "prolix, convoluted and labyrinthine" provisions in order to convict and do so unanimously.
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