ACCC draft immunity and cooperation policy and FAQ's
ACCC Consultation on Immunity Policy for Cartel Conduct
In March 2013 the ACCC commenced a review of its Immunity Policy for Cartel Conduct July 2009. A public consultation took place during October 2013. In April 2014 the ACCC issued a draft immunity and cooperation policy and associated FAQ's for public comment. Submissions closed on 7 May 2014. The ACCC released its new policy on 10 September 2014.
- 'streamlining the processes of granting civil and criminal immunity by utilising a letter of comfort from the CDPP regarding criminal immunity
- clarification of the terms ‘clear leader’ and ‘coercion’ in assessing a party’s eligibility for immunity
- clarification of how cooperation by second and subsequent parties to the cartel will be assessed by the ACCC
- simplifying the format of the policy.'
The discussion paper is no longer available on the ACCC's consultation hub but can be found here.
Submissions were not published on the ACCC consultation page but included:
For news relating to this consultation see, for example:
- Caron Beaton-Wells, 'The ACCC Immunity Policy for Cartel Conduct: Due for Review'  UMelbLRS 1 (or alternate source on SSRN)
- Caron Beaton-Wells, 'Does immunity for cartel whistleblowers really work?' (20 June 2013, The Conversation)
- Michael Corrigan, 'Australian regulator consults on changes to cartel immunity policy' (Clayton Utz Insights, 24 October 2013)
- Gilbert + Tobin, 'ACCC releases discussion paper seeking submissions in cartel immunity policy review' (10 October 2013)
- Hanna Gyton, 'ACCC not immune to review' (In Competition, 3 October 2013)
- Rob Nicholls, 'Cartel Immunity/Leniencey: The Trush, The Whole Truth ...' (UNSW, 14 October 2013)
The ACCC issued a draft immunity and cooperation policy and associated FAQ's on 9 April 2014. Submissions are invited from interested parties - closing date for submissions is 7 May 2014. See press release. See consultation hub.
The press release notes that the draft policy includes the following changes:
- utilising a letter of comfort from the CDPP to streamline the processes of granting civil and criminal immunity
- removal of the term ‘clear leader’ (‘coercion’ remains a disqualifying criteria)
- clarification of how cooperation by second and subsequent parties to the cartel will be assessed by the ACCC (consolidation of the immunity and cooperation policies in the one cartel policy document), and
- updating the language of the policy to reflect legislative changes since the last policy was released'
The preface to the policy notes:
Cartels usually involve secrecy and deception. Collusion is difficult to detect ... An immunity and cooperation policy in relation to cartels encourages insiders to provide information and enables the ACCC to penetrate the cloak of secrecy. ...
Just as importantly, an immunity and cooperation policy that provides incentives to businesses and individuals to disclose illegal behaviour is also a powerful disincentive to the formation of cartels ... An immunity and cooperation policy does not offer a reward to ‘good corporate citizens’. It is a detection tool designed to deliver benefits to all Australians by identifying, stopping and taking action against harmful and illegal behaviour'
The policy itself is divided into several parts:
- Scope of the policy
- Civil immunity
- Criminal immunity
- The immunity process (Marker, proffer, waivers, confidentiality, recommendation to CDPP, conditional immunity, final immunity)
- Revocation of immunity
- Closing an investigation/withdrawal of an immunity application
- Cooperation policy
- Amnesty plus
The FAQ's are longer than the policy itself and begin by addressing each step of the application process.
Other sections of the FAQ include:
- International cartels. International cartels are not mentioned in the policy itself, save in the context of waivers. Paragraph 48 of the draft policy notes that the ACCC will not - except as required by law - share confidential information provided by the immunity applicant with other regulators without their consent. However, they will seek consent as a matter of course and will 'request that the applicant provide a confidentiality waiver for each jurisdiction in which it has or intends to seek immunity or leniency ...'). The FAQ addresses the questions:
- How does the Policy apply to international cartels?
- Should I request a marker even if I do not sell products or services directly or indirectly into Australia or buy products or services directly or indirectly from Australia?
- What happens if the applicant’s records are in a language other than English or if a witness does not effectively communicate in English?
- Are witnesses required to travel to Australia?
- Request to expand immunity
- Use of information provided to the ACCC
- Revocation of immunity
- Closing an investigation/withdrawing immunity
- Amnesty plus
- Other - the 'other' questions addressed are:
- 'I am required to cease involvement in the cartel to be eligible for conditional immunity from the ACCC, but I am concerned that doing so may inadvertently signal to the other cartel participants that I have approached the ACCC. What should I do?'; and
- 'I am concerned that securing the cooperation of directors, officers and employees may alert other cartel participants that I have approached the ACCC. What should I do?'
The new Immunity and Cooperation Policy for Cartel Conduct was released by the ACCC on 10 September 2014
Submissions were due by 7 May 2014.