The ACCC has updated its Immunity and cooperation policy for cartel conduct, increasing transparency and certainty about how the immunity program is administered and to clarify the requirements for applicants.

The Immunity Policy is one of the ACCC’s key strategies for detecting, stopping and deterring cartels. Cartels increase prices, stifle innovation and reduce choice for Australian consumers.

“The ACCC regularly reviews its cartel immunity policy to ensure it remains an effective tool for detecting harmful cartels that cheat consumers and other businesses,” ACCC Commissioner Liza Carver said.

“Individuals and corporations are reminded they face serious civil and criminal liability for their involvement in cartel conduct.”

“We strongly encourage parties who have been involved in cartel conduct to come forward and seek immunity. Criminal and civil liability can potentially be avoided if parties contact the ACCC as early as possible,” Ms Carver said. 

The ACCC has consulted extensively with relevant parties and harnessed the knowledge and experience gained in administering the Immunity Policy since it was last updated in October 2019.

The ACCC has made targeted amendments to provide transparency about how the ACCC administers the Immunity Policy, and to update and clarify the requirements of eligibility for immunity.

“Our targeted improvements to the Immunity Policy offer certainty and clarity to applicants about their obligations and the way the policy is administered,” Ms Carver said.

The ACCC has also introduced a new requirement for immunity applicants to take steps to reduce the risk of future non-compliance with Australian competition law.

Anyone who thinks they may be involved in cartel conduct is urged to call the ACCC Cartel Immunity Hotline on (02) 9230 3894. Anyone who is approached by another competing business to discuss arrangements about pricing, customers or bidding, should not get involved and report it to the ACCC. You can remain anonymous by reporting through our anonymous cartel portal.

More information about cartels and the cartel immunity process is available on the ACCC website.

Background

The Immunity Policy is one of the ACCC’s key strategies to detect, stop and deter cartel conduct. Domestic and international experience has demonstrated that an effective immunity program encourages self-reporting of cartel conduct by participants. Without incentives for cartelists to come forward and cooperate, cartels can be very difficult to detect. The threat of detection destabilises existing cartels and deters the formation of new cartels.

Under the Immunity Policy, cartel participants may seek both civil and criminal immunity for cartel conduct by application to the ACCC. The ACCC is responsible for granting civil immunity, while the Office of the Commonwealth Director of Public Prosecutions is responsible for granting criminal immunity.

The ACCC works to detect cartels including through education programs, proactive intelligence gathering and data assessment and working with overseas counterparts to identify cartels that operate on a global level.

Cartel conduct

A cartel exists when businesses agree to act together instead of competing with each other. Cartels activity may involve price fixing, market sharing, bid rigging or competitors controlling the output of particular goods or services.

A cartel:

  • is made up of independent businesses
  • attempts to increase members’ profits while maintaining the illusion of competition
  • can involve businesses of any size, from small, local businesses to large corporations
  • can be local, national or international.

Cartel conduct is illegal and is strictly prohibited. The laws about cartel conduct are in the Competition and Consumer Act, which applies to all corporations in Australia, as well as individuals involved in the conduct.

Individuals and corporations face serious civil and criminal liability for their involvement in cartel conduct.

Corporations face a maximum penalty of:

  • $50 million, or
  • when the value of illegal benefit can be ascertained, three times the value of the illegal benefit, or
  • when the value of the illegal benefit cannot be ascertained, 10 per cent of the turnover of the corporation in the preceding 12 months.

Cartel conduct is considered so harmful that individuals convicted of a cartel offence can face up to 10 years in jail and/or fines of up to $660,000 per offence. A civil penalty of up to $2,500,000 per contravention can be imposed on an individual.

The court may disqualify directors and officers from managing a company. It can also prohibit any indemnity for legal costs and financial liabilities such as fines.