The changes represent an advancement of ACCC policy and are
likely to improve the immunity application process in
What you need to know
The revised Policy features key amendments to the substantive
requirements of immunity applications in Australia. The
administrative changes will give greater transparency and practical
comfort to applicants by clarifying the position of the
Commonwealth Director of Public Prosecutions for criminal immunity
applications, a change which we are already seeing in practice.
The new Policy also:
broadens the scope of participants eligible for immunity by
removing the disqualifying provision for a "clear leader"
of the cartel;
further explains the criterion that a party which coerced
others to join the cartel is not eligible for immunity; and
clarifies the benefits of cooperating with the ACCC including
via the amnesty plus arrangement.
Commonwealth Director of Public Prosecutions to provide
"letters of comfort"
The dual regulatory system in Australia requires both civil and
criminal immunity. Since 2009, the practice for obtaining criminal
immunity required an application to be made by the ACCC to the
Commonwealth Director of Public Prosecutions
(CDPP) addressing the issue of immunity from
Although the ACCC typically would inform the client that the
application had been made to the CDPP, in some cases, applicant
would not hear back from the CDPP about the outcome of the
application. One reason for this may have been the drafting of the
CDPP Act, which limited the provision of formal undertakings to
clearly criminal matters. This is problematic in an early stage of
an immunity process, since the evidence available is often
inconclusive. In any event, in our experience the lack of
communication by the CDPP was a cause of significant anxiety for
local and international clients alike.
The Policy improves the administrative process surrounding the
application for immunity, by providing that the CDPP will
write to applicants informing them of the terms and conditions of
Exclusion of immunity for "clear leaders"
Under the previous guide there was a disqualifying provision for
a "clear leader" of the cartel. To our knowledge that
disqualifying factor has never been applied by the ACCC and it was
Under the new Policy, a party can now more confidently
apply for immunity even if it was the initiating party
which created the cartel or led the others in organising meetings
or communications to implement the cartel's activities.
Exclusion for "coercion" retained
Despite the removal of the "clear leader"
disqualification, parties who are found to have coerced
others into cartel behaviour will still be excluded from
the cartel immunity application process. Coercion in this context
is not limited to instances of physical coercion or threats of
violence, but also includes instances of commercial threats or
inducements to pressurise an unwilling participant to take part in
a cartel. Several examples of commercial pressure are offered in
the new Policy to provide guidance on this test.
Amnesty Plus arrangement clarified
A party who is co-operating with the ACCC in relation to one
cartel may discover a second cartel that is independent and
unrelated to the first cartel. In these circumstances, the party
may apply for conditional immunity for the second cartel and also
seek "amnesty plus" for the original cartel conduct.
Previously it was not clear what additional leniency might be
available for a second or later applicant on the first cartel
matter notified. Now the Policy makes clear that amnesty plus
involves a recommendation by the ACCC to the Court for a
further reduction in the civil penalty in relation to the
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.
Persons listed may not be admitted in all states and
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
This newsletter includes links to recent media releases, reports and cases relating to competition and consumer law.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).