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Guidelines

Prosecution Policy of the Commonwealth

Current signed, 15 August 2014
Original signed, July 2009

 

MOU

The Memorandum of Understanding between the Commonwealth Director of Public Prosecutions and the Australian Competition and Consumer Commission Regarding Serious Cartel Conduct states, in part, that:

7.4 The CDPP will decide whether to grant immunity from criminal proceedings for a party who meets the criteria for conditional immunity under the ACCC's Immunity and Cooperation Policy in accordance with Annexure B of the Prosecution Policy of the Commonwealth and upon the recommendation of the ACCC.

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8.1 A party that does not meet the criteria for conditional immunity under the ACCC's Immunity and Cooperation Policy (for example, a party cooperating under Section H of the ACCC's Immunity and Cooperation Policy) may apply for immunity from prosecution but that application will be determined by the Director in accordance with Chapter 6 of the Prosecution Policy of the Commonwealth, not Annexure B of that policy. Such an application will be considered following consultation with the ACCC.

 

Prosecution Policy of the Commonwealth (Chapter 6)

6. SOME OTHER DECISIONS IN THE PROSECUTION PROCESS

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6.10 Annexure B to this Policy and the Memorandum of Understanding between the Australian Competition and Consumer Commission and DPP make provision with respect to the circumstances in which the DPP will consider applications for immunity in respect of the offences in sections 44ZZRF and 44ZZRG of the Trade Practices Act 1974 (including a relevant ancillary liability offence). Annexure B and the Memorandum of Understanding deal with applications for immunity by the first participant in the cartel activity to seek immunity. Subsequent applications for immunity will be dealt with in accordance with this Policy.

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For full chapter 6 see CDPP website

 

Prosecution Policy of the Commonwealth (Annexure B)

Annexure B: Immunity from Prosecution in Serious Cartel Offences

1. Preface

1.1 This document outlines the policy of the office of the Commonwealth Director of Public Prosecutions (DPP) in considering an application for immunity from prosecution by a party implicated in a serious cartel offence who meets the criteria for conditional immunity under the ACCC’s Immunity and Cooperation Policy August 2014 (Immunity and Cooperation Policy). A serious cartel offence refers to the offences in sections 44ZZRF and 44ZZRG of the Competition and Consumer Act 2010 (CCA) and the corresponding offences in the State and Territory Competition Codes.

1.2 This policy is based on a recognition by Government that, in respect of serious cartel offences, it is in the public interest to offer immunity from prosecution to a party who is willing to be the first to break ranks with other cartel participants by exposing the illegal conduct and fully cooperating with the Australian Competition and Consumer Commission (ACCC) and the DPP.

1.3 Following a recommendation from the ACCC, the DPP will decide whether to grant immunity from prosecution by applying the same criteria as contained in the ACCC’s Immunity and Cooperation Policy. The decision of the DPP whether to grant immunity will be generally communicated to the applicant at the same time as the ACCC’s decision whether to grant conditional immunity.

1.4 Where the DPP considers that the applicant meets the criteria set out in this Annexure, as a first step the DPP will ordinarily provide a letter of comfort to the applicant. Prior to the commencement of any criminal prosecution, the Director will provide a written undertaking under section 9(6D) of the Director of Public Prosecutions Act 1983 (DPP Act) granting criminal immunity in respect of the disclosed cartel conduct. Both the letter of comfort and any subsequent undertaking will be subject to conditions and on-going obligations on the applicant throughout the period of the ACCC investigation until the conclusion of any criminal proceedings against other cartel participants.

1.5 This policy is to be read in conjunction with the Memorandum of Understanding between the DPP and the ACCC regarding Serious Cartel Conduct.

2. Roles of the ACCC and the DPP

2.1 The DPP is an independent statutory agency established under the DPP Act and is responsible for prosecuting offences against Commonwealth laws.

2.2 The DPP is not an investigative agency and does not investigate criminal offences. The decision to investigate an alleged offence under the CCA and refer the matter to the DPP for prosecution is made by the ACCC. The DPP may however provide advice to the ACCC on legal and related issues during investigations.

2.3 The ACCC is an independent Commonwealth statutory authority established under the CCA. The ACCC is responsible for investigating alleged contraventions of the CCA including contraventions of the serious cartel provisions. Where it is alleged that a party has contravened a civil provision of the CCA the ACCC is also responsible for deciding whether to commence court proceedings.

2.4 Applications for immunity are made to the ACCC. Subject to the conditions set out in paragraph 3.1 below, the ACCC may make a recommendation to the DPP to grant immunity from prosecution to a party implicated in a serious cartel offence who meets the criteria for conditional immunity under the ACCC’s Immunity and Cooperation Policy.

2.5 Only the Director can grant a party immunity from prosecution. A letter of comfort issued by the DPP or an undertaking provided by the Director under section 9(6D) of the DPP Act can only operate in accordance with its terms and the DPP Act.

3. Obtaining Immunity

ACCC’s criteria for conditional immunity

3.1 The ACCC’s Immunity and Cooperation Policy outlines a number of mandatory conditions that must be satisfied before conditional immunity will be granted namely:

3.1.1 that the corporation or individual seeking immunity:

(i) is or was a party to a cartel, whether as a primary contravener or in an ancillary capacity;

(ii) admits that their conduct in respect of the cartel may constitute a contravention or contraventions of the CCA;

(iii) is the first party to apply for immunity in respect of the cartel under the ACCC’s Immunity and Cooperation Policy;

(iv) has not coerced others to participate in the cartel; (v) has either ceased involvement in the cartel or indicates to the ACCC that they will cease their involvement in the cartel;

(vi) (for corporations only) makes admissions that are a truly corporate act (as opposed to isolated confessions of individual representatives);

(vii) has provided full, frank and truthful disclosure, and has cooperated fully and expeditiously while making the application, and undertakes to continue to do so, throughout the ACCC's investigation and any ensuing court proceedings; and

3.1.2 at the time the ACCC receives the application, the ACCC has not received written legal advice that it has sufficient evidence to commence proceedings in relation to at least one contravention of the CCA arising from the conduct in respect of the cartel.

3.2 The party seeking immunity must satisfy the above conditions for conditional immunity to remain in place and to be eligible for final immunity.

DPP’s criteria for granting immunity from prosecution

3.3 Where the ACCC is of the view that a party satisfies the conditions for conditional immunity it may make a recommendation to the DPP that immunity from prosecution be granted to that party. This recommendation will provide as much information as possible in relation to the criteria listed in paragraph 3.1.

3.4 The DPP will exercise an independent discretion when considering a recommendation by the ACCC.

3.5 Where the DPP is satisfied that a party meets the ACCC’s criteria for conditional immunity contained in the ACCC’s Immunity and Cooperation Policy, a two-step process will apply. First, the DPP will issue the party with a “letter of comfort”. The letter of comfort will be to the effect that the Director intends to grant criminal immunity to the party in relation to the disclosed cartel conduct in the event that a prosecution is commenced against anyone in relation to that cartel conduct. Second, prior to the commencement of any prosecution, the Director will provide a written undertaking pursuant to section 9(6D) of the DPP Act granting criminal immunity in respect of the disclosed cartel conduct.

3.6 Both the letter of comfort and any subsequent undertaking under the DPP Act will be subject to the party complying with certain conditions throughout the period of the ACCC investigation and until the conclusion of any criminal proceedings against other cartel participants. Those conditions will be specified in the relevant letter of comfort or undertaking under the DPP Act. They will include that:

3.6.1 the party provide on-going full cooperation during the ACCC investigation; and

in respect of an individual that:

3.6.2 they will appear as a witness for the prosecution as and where requested in any proceedings against the other cartel participants; and

3.6.3 any evidence they are called upon to give will be given truthfully, accurately and withholding nothing of relevance.

3.7 The decision of the DPP whether to issue a letter of comfort will be generally communicated to the party at the same time as the ACCC’s decision whether to grant conditional immunity.

3.8 Any undertaking provided by the Director under section 9(6D) of the DPP Act will remain in place unless revoked and therefore an undertaking granting final immunity is not required.

4. Derivative immunity

4.1 The ACCC’s Immunity and Cooperation Policy provides that where a corporate party qualifies for conditional immunity by the ACCC, it may seek derivative immunity, in the same form as its conditional immunity, for all related corporate entities and/or current and former directors, officers and employees who request immunity, admit their involvement in the cartel conduct, and who undertake to and do provide full disclosure and co-operation to the ACCC.

4.2 Similarly, if a corporate party qualifies for immunity from prosecution by the DPP, it may seek derivative immunity, in the same form as its immunity from prosecution, for all related corporate entities and/or current and former directors, officers and employees who request immunity, admit their involvement in the cartel conduct, and who undertake to and do provide full disclosure and co-operation to the ACCC and the DPP.

4.3 Where the ACCC recommends to the DPP that a corporate party should be granted immunity from prosecution the ACCC will also make a recommendation to the DPP in relation to granting immunity from prosecution to parties who meet the criteria for derivative immunity contained in the ACCC’s Immunity and Cooperation Policy. This recommendation will set out all relevant information in relation to a grant of immunity for these parties. The DPP will exercise an independent discretion when deciding whether to grant immunity pursuant to the criteria for derivative immunity.

4.4 Where the DPP considers that a party meets the criteria for derivative immunity contained in the ACCC’s Immunity and Cooperation Policy, as a first step it will ordinarily provide a letter of comfort to the party. Prior to the commencement of any criminal prosecution, the Director will provide a written undertaking pursuant to section 9(6D) of the DPP Act granting criminal immunity subject to fulfilment of ongoing obligations and conditions.

4.5 The DPP’s decision to issue a letter of comfort will be generally communicated to the party at the same time as the ACCC’s decision whether to grant conditional immunity.

5. Revocation of Immunity

5.1 The DPP may withdraw a letter of comfort or the Director may revoke a written undertaking provided under section 9(6D) of the DPP Act at any time during the investigation and prior to the conclusion of criminal proceedings if:

5.1.2 the ACCC makes a recommendation to withdraw the letter of comfort or revoke the undertaking, and the DPP or Director, exercising an independent discretion, agrees with that recommendation; or

5.1.3 the DPP or Director believes on reasonable grounds that:

(i) the recipient of the letter of comfort or undertaking has provided information to the DPP that is false or misleading in a relevant matter; and/or

(ii) the recipient of the letter of comfort or undertaking has not fulfilled any condition(s) of the letter of comfort or undertaking.

5.2 The DPP will notify the recipient in writing if a letter of comfort is to be withdrawn or an undertaking is to be revoked, and the recipient will be afforded a reasonable opportunity to make representations.

6. Disclosure issues

6.1 The DPP has a published policy in relation to the prosecution’s obligation to disclose relevant material to the defendant. Reference should be made to that policy.

6.2 Where a party is granted immunity from prosecution, the terms of the undertaking between the DPP and the party will be disclosed to the court in accordance with the Disclosure Policy of the Commonwealth.

7. Prosecution Policy of the Commonwealth

7.1 Items 1 to 6 of this Annexure only apply to parties who are first to disclose cartel conduct (i.e. “first in the door” applicants) and who, in all other respects, meet the criteria for conditional immunity under the ACCC’s Immunity and Cooperation Policy. A party that is not eligible for conditional immunity under the ACCC’s Immunity and Cooperation Policy (for example, a party cooperating under Section H of the ACCC’s Immunity and Cooperation Policy) may nevertheless apply for an undertaking under section 9(6D) of the DPP Act but the application will be determined by the Director in accordance with Chapter 6 of the Prosecution Policy of the Commonwealth.

Robert Bromwich SC
Commonwealth Director of Public Prosecutions
August 2014


Links

View Memoranda of Understanding (MOU) from CDPP website

View 'ACCC and CDPP Outline Arrangements for Cartel Conduct Immunity' (CDPP, 1 December 2008)

View Prosecution Policy of the Commonwealth (inc Annexure B: Immunity from Prosecution in Serious Cartel Offences)

View ACCC Cartels Page