By Crikey reporter Jane Nethercote

The ACCC’s new policy
on immunity for cartel behaviour – aimed at helping the watchdog
uncover more cartels – was announced in August this year, replacing the
2003 leniency policy.

While calling for greater penalties and
criminal sanctions for those found guilty in the courts, the new policy
seeks to encourage people with knowledge of a cartel to come forward.
It provides full immunity from prosecution and penalty to the first
whistleblower of cartel conduct in the form of price-fixing, market
sharing, or bid rigging, and applies to all applications received after
5 September 2005, according to a recent Freehills newsletter.

But
conditional immunity is not a free pass for corporations, says ACCC
chairman Graeme Samuel. Companies who want to to apply for immunity
have to cooperate in a full and frank manner, often at their own
expense. And the informants can’t be cartel leaders, and they can’t
have coerced others to join the cartel.

Freehills has a good overview of the immunity provisions in its recent newsletter. The major changes that the policy introduces include:

  • A new marker system which will give prospective immunity applicants
    28 days to provide the ACCC with complete details of the cartel
    conduct. A request for a marker is not the same as an application; it
    is simply a way of ensuring prospective applicants secure their place
    in the ‘immunity queue’ while investigations are completed. To
    encourage ‘the race to the door’, only very basic details are required
    to request a marker. However, if the marker period lapses and notice of
    this is given to the prospective applicant, other persons are free to
    apply for immunity or request markers in relation to the particular
    cartel.
  • A new hypothetical application system which will be
    independent of a marker system and would allow genuine prospective
    immunity applicants to enquire of the ACCC whether leniency is
    available in respect of a particular product or service or in a
    particular industry without giving details of conduct or revealing the
    identity of the prospective applicant. As part of the hypothetical
    process, a minimum amount of information is required, including market
    and product or service. According to the ACCC, adopting a hypothetical
    approach will facilitate self-reporting by giving a cartel participant
    some degree of comfort that conditional leniency is available before
    approaching the ACCC to request a marker or make an application.
  • Clarification that a second applicant will be allowed immunity
    in circumstances where the first applicant withdraws their application
    or fails to satisfy the requirements for immunity.
  • Automatic full immunity to be available up until the time the
    ACCC has received written legal advice that it has sufficient evidence
    to institute proceedings in relation to at least one contravention of
    the TPA arising from the cartel conduct. Full immunity will be
    automatic even after the ACCC has become aware of the conduct. This
    gives a broader scope than the former leniency policy, which only
    conferred full immunity if the ACCC was unaware of the cartel at the
    time leniency was sought.
  • Removal of the requirement to make restitution to injured parties.
  • Removal of the requirement for written applications. A
    ‘paperless’ process for leniency applicants will be adopted, when
    requested. A paperless process will allow the applicant to make an
    application without generating any new documents which may involve
    admissions that might be discoverable against their interests in later
    proceedings. The ACCC will continue to make its own records of the
    application, however the commission will attempt as far as possible to
    ensure that these records do not prejudice the interests of the
    applicant.
  • Where a corporation qualifies for immunity, the default
    position is that all current and former employees will also have
    immunity.
  • Clarification that the ACCC may approach an individual cartel participant about the availability of immunity.