At the Senate sitting on May 27, Liberal Senator George Brandis questioned the director of the Commonwealth Department of Public Prosecutions (CDPP) Chris Craigie SC on whether a written protocol existed to govern the decision to refer matters to the ACCC.

"A concern in ... areas of the business community ... [is] the ACCC [would be able] to put a gun to the head of such a party and, in effect, force the party to settle the matter on whatever terms as to civil penalties the ACCC demands - for fear that if that party does not yield to the ACCC's demands - the ACCC will simply send the matter off to you and its directors may face criminal prosecution," he said.

Nationals Party Senator Ron Boswell warned that such a situation could give someone a "tremendous lever to get an agreement".

CDPP director Craigie responded that such circumstances were highly speculative and that a Memorandum of Understanding (MOU) already existed. According to Craigie, discussions have been entered into, but no settled ACCC referrals protocol currently exists.

Craigie defended the ACCC's approach to imposing criminal penalties for cartel conduct.

"I can only say it is my clear impression that the ACCC and the chairman in particular are very much aware of the delicacy of their position if there is any possibility of a future criminal position, and they would conduct themselves with propriety and within their powers with that reality in mind," he said.

Brandis also expressed concern that the referral of matters involving serious cartel conduct to the ACCC would allow the regulator to preliminarily judge a matter, arguing that the decision should remain with the CDPP.

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"You cannot as the prosecutor have your hands tied by what the complainant wants to do, can you? You would be informed by their views, but it [would be] your decision in the end?" he asked.

Craigie agreed the ultimate decision lay with his department, but said he found it difficult to conceive of a situation where there would be both a civil proceeding and facts so serious as to require a referral to his department for criminal action as well.

The Trade Practices Amendment (Cartel Conduct and Other Measures) Bill 2008 criminalises cartel conduct including price-fixing, restricting outputs in production or supply chain, allocating customers, suppliers or territories and bid-rigging. Individuals can face up to ten years imprisonment for breaches of the laws.

The concerns about referrals and prosecutorial discretion were expressed on the back of questioning from Brandis about the CDPP's response to the Clarke Report. The report examined the case of Indian doctor Mohamed Haneef, who was charged with terrorism offences after investigation and referral from the Australian Federal Police (AFP).

Craigie said the CDPP had conducted an exhaustive internal review in response the report, which found a departure from protocols, not systematic failure was responsible for the Haneef bungle.

- Sarah Sharples