Hot off the press, the ACCC has released its updated Immunity and Cooperation Policy for Cartel Conduct (Updated Policy). As previously blogged, the ACCC engaged in targeted consultation in 2013 and early 2014 in order to simplify the format of its immunity policy.
In April, we reported on the release of a draft policy and draft FAQs document for public comment. The draft proposed changes which were aimed at:
- Producing a simpler, unified policy document
- Implementing a 2-step process for obtaining criminal immunity for cartel conduct (a comfort of letter followed by an undertaking by the Commonwealth Director of Public Prosecutions (CDPP)), which is now also reflected in the recently revised Prosecution Policy of the Commonwealth and in particular Schedule B to the Prosecution Policy, “ Immunity from Prosecution in Serious Cartel Offences”, and
- Removing the “clear leader” exclusion, while retaining as an eligibility condition that the party has not coerced others to participate in the cartel.
The updated Policy and its associated FAQs replace the ACCC Immunity Policy for Cartel Conduct July 2009 and ACCC Immunity Policy Interpretation Guidelines July 2009. It commenced on 15 August 2014 and applies to parties who have been involved with cartel conduct and are seeking immunity or to cooperate with the ACCC. Applications that are made under former policies will be subject to the former policies.
Helpfully, the Updated Policy provides a nifty flowchart which summarises the immunity process:
Click here to view the table
While there are some differences between the consultation draft previously blogged about, and the Updated Policy (set out below), the Updated Policy does not reflect any significant departure from the earlier draft or the general practice of the ACCC to date.
The differences include that:
- the Updated Policy replaces the language of leniency (where immunity is not available) with the language of cooperation
- it is clearly stated that derivative immunity for related corporate entities or employees (current or former) will be in the same form as the conditional immunity granted to the corporation
- there is greater detail about the conditions to the grant of criminal immunity after the CDPP has issued its letter of comfort to an applicant, those requirements being that they:
- maintain eligibility criteria for conditional immunity;
- provide full, frank and truthful disclosure and cooperate fully and expeditiously on a continuing basis with the ACCC’s investigation and any ensuing civil or criminal proceedings; and
- maintain confidentiality regarding the parties’ status as an immunity applicant.
The Updated Policy also provides additional detail in relation to the grant of leniency in respect of criminal investigations, in circumstances where immunity is not available:
- In relation to cooperation in criminal matters, a party cooperating with the ACCC will have their request for leniency from criminal prosecution determined in accordance with the Prosecution Policy itself, rather than pursuant to the Annexure relating to Serious Cartel Offences. Such a party may apply for an undertaking under section 9(6D) of the DPP Act (to be granted when the DPP considers it appropriate to do so), as determined by the DPP under the general terms of the Prosecution Policy.
- In those circumstances, the Updated Policy notes that, as provided by the Crimes Act 1914 (Cth) in section 16A(2), there are a number of factors relevant to sentencing, including factors such as pleading guilty, cooperation with law enforcement agencies and showing contrition for an offence. The Updated Policy states that the CDPP will always identify, by way of submissions to the Court, the nature, timing and type of cooperation provided by the party and the value of that cooperation.
The Updated Policy and Prosecution Policy each reflect the continuing priorities of the ACCC and CDPP to strongly encourage and incentivise parties to cooperate with enforcement efforts.