The Australian Competition and Consumer Commission has published its updated Immunity and Cooperation Policy for Cartel Conduct.

The policy incorporates the following key changes:

• implementing a two-step process for the Commonwealth Director of Public Prosecutions (CDPP) to grant criminal immunity for cartel conduct where the CDPP will ordinarily issue a letter of comfort first, and subsequently provide an undertaking under the Director of Public Prosecutions Act 1983;
• immunity will not be available if the individual or the corporation has coerced others to participate in the cartel; and
• consolidating various publications into one policy document and a set of FAQs.

Under the policy, cartel participants may seek both civil and criminal immunity for cartel conduct. The ACCC is responsible for granting civil immunity, while the CDPP is responsible for granting criminal immunity. The ACCC works closely with the CDPP on applications for criminal immunity.

The process is described in this flow chart:

The CDPP’s approach to granting criminal immunity is set out in an updated Annexure B to the Prosecution Policy of the Commonwealth.

Individuals found guilty of cartel conduct could face criminal or civil penalties, including up to 10 years in jail and/or fines of up to $340 000 per criminal cartel offence and a pecuniary penalty of up to $500 000 per civil contravention.

For corporations, the maximum fine or pecuniary penalty for each criminal cartel offence or civil contravention (whichever applies) will be the greater of
$10,000,000 and three times the total value of the benefits obtained by one or more persons and that are reasonably attributable to the offence or contravention or where benefits cannot be fully determined, 10 per cent of the annual turnover of the company (including related corporate bodies) in the preceding 12 months.