Last week the ACCC released its draft Immunity and Cooperation Policy for Cartel Conduct April 2014 (Draft Policy) and draft Frequently Asked Questions (Draft FAQs) for public comment. This release of the Draft Policy and Draft FAQs followed extensive consultation in October 2013 (see our previous blog post). The major proposed changes are:
- A simpler, unified document
The Draft Policy sets out in one document the ACCC’s policy for immunity and cooperation for cartel conduct. It will replace the current cartel immunity policy, the accompanying Interpretative Guidelines July 2009 as well as the ACCC’s cooperation policy for enforcement matters July 2002 insofar as that policy affects cartel conduct. (The 2002 policy still governs applications for leniency for contraventions other than cartel conduct.)Another welcome change is that the Draft Policy is written in plain English. For those visual learners amongst us, there are helpful diagrams outlining the process for applying for immunity or leniency and the operation of the Amnesty Plus scheme.
Finally, to increase understanding of the Draft Policy, the ACCC has released Draft FAQs. The ACCC has made clear that the Draft FAQs are not to be relied upon in interpreting the Draft Policy, which is intended to be a standalone document following the removal of the Interpretative Guidelines. The Draft FAQs provide simple, clear explanations of the practicalities of applying for immunity and leniency. They contain over 58 questions, including helpful examples to provide clarity on issues including amnesty plus, waivers given by the immunity applicant which authorise the ACCC to disclose information to foreign regulators, and whether the immunity applicant has engaged in coercion.
- Letters of comfort for criminal immunity Under previous arrangements between the ACCC and the Commonwealth DPP, the Commonwealth DPP could grant criminal immunity only by providing a formal undertaking not to prosecute under the Director of Public Prosecutions Act. Although a formal undertaking would still ultimately be given, under the Draft Policy, the DPP will be able to provide a “letter of comfort” if, in its independent discretion, together with the ACCC’s recommendation, it considers that criminal immunity should be granted. The Draft Policy provides that this letter of comfort will generally be granted at the same time as the ACCC grants any conditional civil immunity.These changes will provide greater certainty to potential immunity applicants and are designed to encourage reporting of cartel conduct.
- Removal of the “clear leader” exclusion The Draft Policy removes the requirement that an applicant for immunity cannot be the “clear leader” of a cartel. As with the letter of comfort, this measure is designed to encourage increased reporting of cartel conduct. In making this change, the ACCC has made a policy choice that the risk of the misuse of immunity policies is outweighed by the public interest benefit in bringing cartel conduct to the ACCC’s notice.
The ACCC is inviting comments on the Draft Policy, closing on 7 May 2014. If you would like to make a submission, we can help.
For more information and to view the draft documents, visit the ACCC’s Consultation page.
