How to get out of a cartel?
Immunity for cartel participants
The ACCC has established an immunity policy for corporations and individuals who have been involved in a cartel but then report their involvement to the ACCC.
The policy provides immunity from litigation and penalty for those who assist with cartel investigations. The ACCC can grant civil immunity. Immunity from criminal prosecution can only be granted by the Commonwealth Director of Public Prosecutions (CDPP), on the recommendation of the ACCC, as outlined in the MOU, and in accordance with the prosecution policy of the Commonwealth.
The immunity is strictly conditional and is subject to a number of conditions.
Conditions for immunity
- Only the first person or corporation to bring the matter to the attention of the ACCC may qualify for immunity (those who subsequently cooperate may be offered leniency).
- The immunity applicant must not have been the clear leader of the cartel or have coerced others to join.
- They must cooperate fully with the ACCC and continue to cooperate, or the immunity may be withdrawn.
- They must cease their involvement in the cartel or agree to cease such conduct.
- An application for immunity will not be accepted if the ACCC already has written advice that there is sufficient evidence to commence court proceedings.
- A person or corporation may request a ‘marker’ for a limited period of time. This will, in effect, preserve first place in the queue while the applicant collects information or seeks legal advice.
Corporate immunity is offered only if the admissions are a truly corporate act, as opposed to isolated confessions of individual representatives. The immunity may cover past and current directors, officers and employees who admit their conduct and cooperate with the investigation.
The corporation must list all those seeking this derived immunity at the time of applying.
Individuals may also seek immunity on the same conditions. This might apply where an individual officer wishes to report the conduct to the ACCC.
Confidentiality
Whistleblowers can report to the ACCC on a confidential basis.
Investigators will, as far as possible, keep the identity of whistleblowers confidential.
The Competition and Consumer Act has special provisions for protected cartel information. This enhances the protection given to confidential information about a possible breach of the civil or criminal provisions relating to cartel conduct.
Benefits of the immunity policy
The immunity policy has been extremely successful in detecting cartels and providing a powerful deterrent to engaging in cartel activity.
It provides a strong incentive for a member to be the first to break ranks, confess, stop participating in cartel activities and help with ACCC and CDPP investigations.
The policy works by injecting distrust and suspicion into a cartel, which destabilises relationships between participants. The message is simple:
Don’t be beaten in the rush to the confessional.
It is important to note that immunity does not protect a company from civil damages claimed by its customers.