On 9 April 2014 the Australian Competition and Consumer Commission (ACCC) released a draft version of the immunity and co-operation policy for cartel conduct (Draft Immunity Policy)  and Frequently Asked Questions regarding the Policy (Draft FAQs) for public comment. Comments are due by 7 May 2014 to immunityreview@accc.gov.au.

The Draft Immunity Policy and Draft FAQs follow from the review announced in September 2013 of the current ACCC Immunity Policy for Cartel Conduct July 2009 (2009 Immunity Policy) and ACCC Immunity Policy Interpretation Guidelines July 2009 (2009 Guidelines). The review included a Discussion Paper and an invitation for submissions.

Whilst the Draft Immunity Policy adopts almost all of the suggestions raised in the ACCC’s Discussion Paper, its key terms remain largely consistent with its predecessor. 

We believe that the proposed revisions contained in the Draft Immunity Policy and Draft FAQs will improve the operation of the immunity process and give greater clarity and certainty to prospective applicants. The Draft Immunity Policy is now much more reflective of current practices than its predecessor. The consolidation of the guidance documents into a “one stop shop” combining most of the previous 2009 Immunity Policy and 2009 Guidelines, as well as extracting the relevant alleged cartel conduct component of the Co-operation Policy for Enforcement Matters, significantly reduces the need to refer across multiple documents, and is a significant practical improvement. 

The Draft Immunity Policy has addressed the key issues outlined in the Discussion Paper as follows:

  •  adopting a “letter of comfort” approach in relation to granting conditional criminal immunity from the CDPP, which should more closely align the CDPP and ACCC (and therefore the civil and criminal) approaches;
  •  the “letter of comfort” from the CDPP for criminal matters will generally be provided at the same time as the ACCC’s “letter of comfort” in respect of civil matters;
  •  the term “clear leader” has been removed from the criteria used to assess a party’s eligibility in attaining immunity in order to reduce confusion – not coercing other participants remains a criterion and clarification of the meaning of coercion is contained within the Draft FAQs;
  •  the factors to be taken into account for co-operation discounts for second or subsequent applicants have been clarified, including setting out the co-operation policy as it applies to cartels within the Draft Immunity Policy;
  •  the ACCC’s “Amnesty Plus” policy has been clarified in relation to an independent and unrelated second cartel discovered and reported during co-operation with the ACCC by a leniency applicant in relation to the first cartel;
  •  the Draft Immunity Policy now outlines the ACCC’s proposed process for revoking and withdrawing immunity, including the additional step of explaining the closing of an investigation;
  •  various miscellaneous issues are now addressed, including the conducting of proffer interviews orally or in writing (including recording) 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 (if the ACCC determines a waiver is not justified in the circumstances then the applicant may be ineligible for leniency or immunity); and
  • the Draft FAQs walk potential applicants through the process using plain language and include a number of worked examples providing more accessible guidance than the 2009 Guidelines.