The Australian competition agency, the ACCC, is currently undertaking a review of its immunity policy, in light of the experience gained since Australia criminalised its cartel laws in July 2009. The review will focus on:
the joint roles of the Director of Public Prosecutions (DPP) and ACCC;
the carve-out for ringleaders; and
The ACCC's current cartel enforcements
Since its immunity policy was launched in 2005, the Commission has received about 110 marker applications and currently is actively pursuing between 20 and 30 investigations, not all of which include cartel allegations.
Australia has yet to see a prosecution initiated under the new criminal cartel legislation although it is understood that the ACCC is working with the Federal Director of Public Prosecutions on a number of potential matters. Recently Rod Sims, the ACCC Chair said the Commission "will not rush" criminal investigations or be tempted to prosecute matters better suited as civil allegations, but they will pursue the right matter "with vigour".
Currently the ACCC has a number of cartel cases on foot before the Federal Court, including cases involving online air travel arrangements; LPG bottled gas; the supply of auto parts, power cables; and two remaining air cargo cases.
It has also become more active recently on the education front and has arranged for the production of a short feature film "The Marker", a fictional video depiction of the ACCC's immunity policy in action.
Cartel immunity applications in practice
Currently in Australia immunity applications are handled by the ACCC in conjunction with the DPP. A Memorandum of Understanding between the two agencies was adopted to address immunity applications covering both civil and criminal liability.
Under Australia's concurrent civil and criminal procedure, only the DPP can grant immunity for a criminal prosecution, while the ACCC retains the power to grant immunity in respect of civil liability.
In recent matters we have handled, it appears that the DPP is quite slow to move to exercise its powers to make a decision to grant immunity against criminal liability, even in cases where civil immunity has been granted by the ACCC. Why this is so is not apparent from discussions we have had with ACCC staff. This experience is one of the items to be considered with the current review.
This experience, which is not confined to matters where we have been involved, has created some uncertainty in the minds of immunity applicants and advisers. In these instances immunity has been granted on a civil basis but the DPP has neither granted or refused immunity.
In 2012, a new Director has been appointed to the office of DPP, Mr Robert Bromwich SC, and consequently we may see changes in policy in the near future.
Other matters being considered by the review of cartel enforcement
Other topics to be the subject of the current ACCC review include:
the "ringleader" carve-out in the ACCC policy (whereby immunity may not be granted to a party who was the clear ringleader in cartel conduct or which coerced others into joining the cartel); and
the use and form of waiver letters (which immunity applicants are routinely required to submit), to enable the ACCC to share confidential evidence with other agencies.
We understand the review will not address the ACCC's policies regarding confidentiality of immunity information and the operation of the "protected cartel information" provisions in Australian law. These provisions were introduced to strengthen the ACCC's hand to resist applications by third parties for access to the immunity file.