On 4 May 2013, the ACCC announced a review of the ACCC Immunity Policy for Cartel Conduct (Cartel Immunity Policy). On 30 September 2013, following an internal review and external engagement, including with practitioners, academics, the Commonwealth Director of Public Prosecutions (CDPP) and international regulators, the ACCC released a discussion paper seeking comment on the following issues:

  • streamlining of the process of granting civil and criminal immunity, by utilising a letter of comfort from the CDPP to grant conditional criminal immunity;
  • removal of the term ‘clear leader’, whilst retaining ‘coercion’, as a basis upon which a party may be excluded from being eligible for immunity;
  • clarification of the factors to be taken into consideration for cooperation discounts, including provision of guidance and clarification of the process of Amnesty Plus (where an applicant discloses a second cartel unrelated to the first cartel, in respect of which the applicant does not have immunity);
  • a proposed process for withdrawing immunity, where an applicant is deliberately not satisfying its obligations or where there is evidence to suggest a ‘gaming’ of the immunity policy;
  • redrafting of the guidance documents to make them more accessible and provide greater clarity;
  • recording of oral applications and subsequent transcription for the purpose of the ACCC seeking legal advice;
  • providing greater guidance of the requirements in a proffer interview; and
  • requirement for waivers in international cartels.

Submissions are due by 28 October 2013. The ACCC anticipates that it will publish a draft updated Cartel Immunity Policy for comment on 25 November 2013, and that the final revised Cartel Immunity Policy will be published by early January 2014.