The immunity policy seeks to maximise the incentives for cartel participants to self-report their involvement in a cartel and to provide certainty for applicants about how the ACCC will deal with immunity applications. Like the 2003 leniency policy, the immunity policy only applies to cartel conduct.
The immunity policy will confer full amnesty from prosecution and penalty to the first eligible cartel participant to report its involvement in a cartel and cooperate with the ACCC’s investigation and prosecution of other cartel participants.
For the purposes of the immunity policy, cartel conduct comprises any of the following categories of conduct engaged in by two or more businesses who are, or otherwise would be, in competition with each other:
price fixing
market sharing including bid rigging, customer sharing and market allocation
agreements not to compete with each other or to limit or restrict competition between them
production or sales quotas.
The immunity policy applies to large and small businesses (whether or not they are incorporated) and to individuals who have engaged in cartel conduct affecting Australian markets. The policy will not apply to cartel ringleaders or cartel members who have coerced others into participating in the cartel. The full list of conditions is outlined in the immunity policy.
The immunity policy applies to applications received after 9am EST on 5 September 2005 and replaces the ACCC’s leniency policy. (The ACCC's now-replaced leniency policy came into force on 30 June 2003.) The immunity policy is to be read in conjunction with the immunity policy interpretation guidelines.
If an applicant is ineligible for immunity but wishes to cooperate with the ACCC, their cooperation may consider under the ACCC’s cooperation policy.
In response to the Government's proposal to amend the Trade Practices Act 1974 and criminalise cartel conduct in Australia, the ACCC and Commonwealth Director of Public Prosecutions have issued the final Memorandum of Understanding between the agencies. It is proposed that the MOU will be signed after amendments to the Act receives Royal Assent and before the commencement of any new cartel provisions.
The ACCC has issued its revised Immunity Policy and Guidelines that will apply to applications for immunity from cartel conduct under the proposed civil and criminal provisions.
The CDPP has issued its Annexure to the Prosecution Policy of the Commonwealth, which outlines the policy of the CDPP in considering an application for immunity from prosecution by a person implicated in a serious cartel offence.
It is intended that these documents will become operational on commencement of the new civil and criminal cartel provisions.
