30 September 2013. The Australian Competition and Consumer Commission has released a public discussion paper inviting comment upon several key issues arising from its review of the ACCC Immunity Policy for Cartel Conduct.

Given the importance of an immunity program, the ACCC regularly reviews the effectiveness of its immunity policy and commenced the current review earlier this year. Following a targeted consultation, the ACCC has identified a number of key issues upon which it seeks further comment, including:

• Streamlining the processes of granting civil and criminal immunity by utilising a letter of comfort from the CDPP regarding criminal immunity;
• Clarification of the terms ‘clear leader’ and ‘coercion’ in assessing a party’s eligibility  for immunity;
• Clarification of how cooperation by second and subsequent parties to the cartel will be assessed by the ACCC; and
• Simplifying the format of the policy.

“Detecting, stopping and deterring domestic and international cartels is a priority for the ACCC,” ACCC Chairman Rod Sims said.

“Cartels harm consumers, businesses and the economy by increasing prices, reducing choice or distorting the ordinary processes of innovation and product development. They can adversely affect domestic and international competitiveness and ultimately result in increased costs for consumers and businesses in Australia,”

“Cartels are often systematic, deliberate and most importantly, covert. Domestic and international experience has demonstrated that an effective immunity policy encourages self-reporting of cartel conduct by participants. The threat of detection destabilises existing cartels and deters the formation of new cartels.”

The ACCC conducts periodic reviews of its Immunity Policy for Cartel Conduct to ensure it has the best possible opportunity to detect and break up cartels operating in Australia

The last substantive review of the Immunity Policy occurred in 2009 and coincided with the introduction of criminal sanctions for cartel conduct. The ACCC seeks comment from interested parties before finalising what changes it may make to the current Immunity Policy.

Since publishing the current version of the immunity policy in July 2009, the ACCC has received over 50 approaches under the policy. Currently, the ACCC has more than 20 current in-depth cartel investigations or matters before the court. All but six of those matters began as immunity applications.

The ACCC invites submissions to the discussion paper in a non-confidential form. The closing date for submissions is 28 October 2013. To view the discussion paper and make a submission, please visit https://consultation.accc.gov.au/compliance-enforcement/immunity-policy-review/