The ACCC has recently released a discussion paper seeking input on issues arising in its review of the ACCC Immunity Policy for Cartel Conduct – see Immunity Policy Review – discussion paper on key issues (the Discussion Paper)   

Under the ACCC’s immunity policy, if the ACCC is satisfied that an immunity applicant has met the requirements for immunity, the applicant will be granted conditional immunity in relation to civil cartel proceedings that the ACCC may otherwise have brought against the corporation or individual.

The policy also sets out the basis upon which the ACCC will recommend to the Commonwealth Director of Public Prosecutions (CDPP) that an immunity applicant may be granted immunity from criminal prosecution. Immunity from criminal prosecution is then determined by the CDPP using the same principles set out in the ACCC immunity policy.

The current immunity policy framework was established in July 2009. The policy makes clear that the ACCC considers an effective immunity policy to be crucial in helping the ACCC detect, stop and deter cartels by encouraging businesses and individuals to disclose cartel behaviour.    

Since the establishment of the existing framework, the ACCC has been approached over 50 times by parties seeking immunity, with 14 out of the 20 cartel investigations currently being pursued by the ACCC having originated from immunity applications. 

The current review commenced earlier this year with initial targeted consultations with legal practitioners and academics that have developed expertise or are users of the policy. Following these consultations, the Discussion Paper was produced with the aim of identifying areas for improvement within the framework in order to provide as much certainty and flexibility to prospective applicants as possible.

The Discussion Paper outlines the following key issues upon which the ACCC seeks further comment:

  • whether to adopt a “letter of comfort” approach to seeking and granting conditional criminal immunity from the CDPP, with a view to more closely aligning the CDPP approach to the ACCC approach;
  • the need for clarification or potential removal of the terms ‘clear leader’ from the criteria used to assess a party’s eligibility in attaining immunity;
  • the need to clearly outline the factors to be taken into account for co-operation discounts for second or subsequent applicants;
  • clarification of the ACCC’s ‘Amnesty Plus’ policy whereby parties who are ineligible for immunity because another party has already been granted conditional immunity may reduce their penalty by reporting a second cartel;
  • the need to outline the ACCC’s proposed process for withdrawing immunity;
  • the possibility of consolidation of the guidance documents and information necessary for prospective applicants to understand and utilise the immunity program, including renaming of the policy; and
  • miscellaneous issues including the recording of prepared statements, the conducting of proffer interviews and the requirement of waivers from applicants to allow the ACCC to share information with officers in overseas agencies where the self-reported cartel has an international element. 

Submissions are due on 28 October 2013.  Gilbert + Tobin is reviewing the Discussion Paper and preparing a submission in response. 

Draft updated policy materials will be published for comment on 25 November 2013. The final revised immunity policy is expected to be released in early January 2014.