Review of the ACCC immunity and cooperation policy for cartel conduct
The Law Council of Australia provided a submission to the Australian Competition and Consumer Commission (ACCC) on its draft consultation revisions to the Immunity and cooperation policy for cartel conduct (Policy) and Immunity and cooperation policy: frequently asked questions.
In making these comments the Law Council has taken into consideration the ACCC’s policy aims of enhancing clarity and providing greater transparency in relation to the Policy. We have also referred to two key principles set out in our Policy Statement – Rule of Law Principles:1
- Principle 1 – the law must be both readily known and available, and certain and clear; and
- Principle 2 – the law should be applied to all people equally and should not discriminate between people on arbitrary or irrational grounds.
In principle, we question the need for a separate immunity policy for cartel conduct. We disagree with the principle that it should only be available to the first party to apply for immunity in respect of the cartel because this is likely to result in arbitrary outcomes. This has the potential to result in inconsistency with the rule of law principle that the law should not discriminate between people on arbitrary grounds. Our preferred position is for the general ‘Prosecution Policy of the Commonwealth’ 2 applied by the Commonwealth Director of Public Prosecutions with respect to applications for immunity – to be applied to cartel participants.
Read the full submission below.
1 Law Council of Australia, Policy – Statement Rule of Law Principles (Policy Statement, March 2011).
2 Commonwealth Director of Public Prosecutions, Prosecution Policy of the Commonwealth – Guidelines for the making of decisions in the prosecution process (Guidelines, 19 July 2021). (‘CDPP’s Policy’)
Last Updated on 22/08/2024