The Australian competition agency, the ACCC, is currently
undertaking a review of its immunity policy, in light of the
experience gained since Australia criminalised its cartel laws in
July 2009. The review will focus on:
the joint roles of the Director of Public Prosecutions (DPP)
the carve-out for ringleaders; and
The ACCC's current cartel enforcements
Since its immunity policy was launched in 2005, the Commission
has received about 110 marker applications and currently is
actively pursuing between 20 and 30 investigations, not all of
which include cartel allegations.
Australia has yet to see a prosecution initiated under the new
criminal cartel legislation although it is understood that the ACCC
is working with the Federal Director of Public Prosecutions on a
number of potential matters. Recently Rod Sims, the ACCC Chair said
the Commission "will not rush" criminal investigations or
be tempted to prosecute matters better suited as civil allegations,
but they will pursue the right matter "with vigour".
Currently the ACCC has a number of cartel cases on foot before
the Federal Court, including cases involving online air travel
arrangements; LPG bottled gas; the supply of auto parts, power
cables; and two remaining air cargo cases.
Currently in Australia immunity applications are handled by the
ACCC in conjunction with the DPP. A Memorandum of Understanding
between the two agencies was adopted to address immunity
applications covering both civil and criminal liability.
Under Australia's concurrent civil and criminal procedure,
only the DPP can grant immunity for a criminal prosecution, while
the ACCC retains the power to grant immunity in respect of civil
In recent matters we have handled, it appears that the DPP is
quite slow to move to exercise its powers to make a decision to
grant immunity against criminal liability, even in cases where
civil immunity has been granted by the ACCC. Why this is so is not
apparent from discussions we have had with ACCC staff. This
experience is one of the items to be considered with the current
This experience, which is not confined to matters where we have
been involved, has created some uncertainty in the minds of
immunity applicants and advisers. In these instances immunity has
been granted on a civil basis but the DPP has neither granted or
In 2012, a new Director has been appointed to the office of DPP,
Mr Robert Bromwich SC, and consequently we may see changes in
policy in the near future.
Other matters being considered by the review of cartel
Other topics to be the subject of the current ACCC review
the "ringleader" carve-out in the ACCC policy
(whereby immunity may not be granted to a party who was the clear
ringleader in cartel conduct or which coerced others into joining
the cartel); and
the use and form of waiver letters (which immunity applicants
are routinely required to submit), to enable the ACCC to share
confidential evidence with other agencies.
We understand the review will not address the ACCC's
policies regarding confidentiality of immunity information and the
operation of the "protected cartel information"
provisions in Australian law. These provisions were introduced to
strengthen the ACCC's hand to resist applications by third
parties for access to the immunity file.
Clayton Utz communications are intended to provide
commentary and general information. They should not be relied upon
as legal advice. Formal legal advice should be sought in particular
transactions or on matters of interest arising from this bulletin.
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