The ACCC has strengthened its cartel immunity and cooperation policy to enhance its transparency and clarify its scope.
The updated immunity policy, which has been informed by experience gathered during key criminal investigations, will come into effect on 1 October 2019.
It will continue to cover cartel conduct such as price-fixing, market sharing, bid rigging and customer allocation, and will clarify that the policy does not cover anti-competitive concerted practices.
“Cartels increase prices, reduce choice and harm Australian consumers, and it is our priority to ensure that serious cartels continue to be detected and that the individuals responsible are prosecuted,” said ACCC Chair Rod Sims.
The immunity policy offers the first party to report a cartel an avenue to avoid potential jail time and substantial fines.
“The immunity policy is one of our key strategies for detecting and dismantling cartels. We have been able to undertake numerous in-depth cartel investigations as a result of immunity applications under our policy.”
“This policy, pro-active ACCC intelligence gathering and whistleblower reports, have resulted in multi-million dollar penalties against cartel members,” Mr Sims said.
Under the revised policy, applicants seeking immunity will now be asked to enter into a cooperation agreement early in the immunity process, which will clearly set out the steps required for conditional civil and criminal immunity under the policy. The policy will also clarify a number of issues related to eligibility for immunity, the level of cooperation required, how information is used and confidentiality.
The first party to report cartel conduct to the ACCC may be eligible for civil and criminal immunity. Anyone involved in a cartel is urged to call the ACCC Cartel Hotline on (02) 9230 3894 or email firstname.lastname@example.org.
End of interim arrangements
The current ACCC immunity and cooperation policy for cartel conduct 2014 will continue to apply until 1 October 2019.
Due to legislative changes, while the policy was under review the ACCC adopted an interim arrangement to ensure fair application of the policy. Under the interim arrangement, the policy has been interpreted to allow applicants to seek and receive immunity from civil action under all of section 45(1), which includes the prohibition on anti-competitive concerted practices.
This interim arrangement will end, when the revised policy comes into effect on 1 October 2019. From this date immunity will no longer be available in respect of anti-competitive concerted practices, regardless of when the conduct occurred.
Anonymously report cartel conduct
The ACCC has launched an additional, completely anonymous, way for people to report cartel conduct allowing whistleblowers to contact the ACCC via an anonymous online portal which encrypts the information and removes the person’s IP address so their identity is anonymous to the ACCC.
“Cartel conduct is often conducted in secret. Therefore, anonymous whistleblowers are an important source of information,” Mr Sims said.
“We want to provide ways for people to report possible cartel conduct to the ACCC with the confidence that their identity won’t be disclosed, even to us.”
Whistleblowers can also obtain a password to log back in and communicate anonymously with ACCC investigators.
“The more information people give us, the more likely it is that we can investigate and act on the report.”
The online portal is available at https://accc-cartels.whispli.com/cartels.
The online portal to report cartels in the construction industry directly to the ACCC’s Commercial Construction Unit is at https://app.whispli.com/accc-anonymously-report-a-construction-issue.
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 CDPP is responsible for granting criminal immunity.
The CDPP’s approach to granting criminal immunity under the immunity policy is set out in Annexure B to the Prosecution Policy of the Commonwealth, which has been updated to reflect the changes to the immunity policy.
More information at Cartels