Both corporations and individuals in Australia can apply for immunity in relation to cartel conduct. The application can be made in relation to civil or criminal proceedings, and is generally referred to as ‘first in’ immunity as it is only available to the first entity to disclose cartel conduct.
In its immunity and cooperation policy (the “Policy”), the Australian Competition & Consumer Commission (ACCC) outlines the 7 key steps in the immunity process.
Step 1 – Marker
A marker is an instrument which preserves one’s status as the first party to report cartel conduct to the ACCC. Where a corporation or individual wishes to make a report and apply for immunity, the relevant party (or their lawyer) may approach the ACCC and request placement of a marker.
The marker is valid for a limited period, allowing the applicant time to gather the information necessary to demonstrate that they satisfy the requirements for civil immunity. The applicant must provide a detailed description of the cartel conduct in order for a marker to be issued.
Once issued, no other individual or organisation will be able to ‘jump the immunity queue’ and take their place. The only scenario in which this may occur is if the marker lapses (e.g. the applicant does not provide sufficient information to the ACCC), or it is cancelled (e.g. ACCC believes the applicant will be unable to satisfy the requirements of conditional immunity).
Step 2 – Proffer stage
After obtaining a marker, the reporting party will need to provide a detailed description of the cartel conduct and any relevant supporting documentation, evidence or witness identification. This is known as a ‘proffer’.
If the ACCC determines that the information provided has in fact disclosed cartel conduct, the applicant (and each derivative immunity applicant) will be asked to enter into a cooperation agreement to be eligible for conditional immunity.
Step 3 – Waivers
In relation to international matters, the ACCC will request that the applicant provide a confidentiality waiver for each jurisdiction in which it intends to seek immunity or leniency related to its involvement in cartel conduct in those jurisdictions.
Whilst technically not a mandatory requirement to be eligible for conditional immunity, non-compliance with a waiver request may be regarded as a failure to provide ‘full cooperation’.
Step 4 – Confidentiality
Whilst the ACCC and Commonwealth Director of Public Prosecutions (CDPP) will endeavour to protect confidential information such as the identity of the immunity applicant, in some situations such as the commencement of civil/criminal proceedings, confidential information may need to be disclosed publicly or to third parties.
The applicant is required to keep confidential the fact that they have applied for immunity, and any information they have obtained through cooperating with the ACCC.
Step 5 – Recommendation to CDPP
Where the ACCC is satisfied that an applicant is eligible for civil immunity, it will recommend that the CDPP grant criminal immunity. The CDPP does however have independent discretion in this regard.
Once an immunity recommendation has been communicated by the ACCC to the CDPP, as a first step the CDPP will ordinarily provide a ‘letter of comfort’ to the applicant. The letter of comfort recognises that the applicant has ‘first-in’ status and that they will be considered for immunity so long as they continue to maintain the eligibility criteria for conditional immunity and provide complete and ongoing cooperation in all relevant investigations and proceedings.
Step 6 – Conditional immunity
Where the ACCC is satisfied that the applicant has met the eligibility criteria for conditional immunity, the applicant (and any eligible derivative immunity applicants) will generally receive two letters:
- Letter from ACCC advising that conditional civil immunity has been granted
- Letter from CDPP advising that criminal immunity has been granted subject to conditions (letter of comfort)
Step 7 – Final immunity
In order to receive final immunity, the applicant (and any derivative immunity applicant) is required to satisfy the following conditions:
- Maintain eligibility criteria for conditional immunity
- Provide full, frank and truthful disclosure and continuing full cooperation throughout any relevant investigations/proceedings.
At the conclusion of any ensuing proceedings (including appeals) and provided the applicant maintains eligibility, the ACCC will orally notify the applicant (and each derivative immunity applicant) that it has final immunity. If requested, this will be confirmed in writing.
As the CDPP will have already advised the applicant that criminal immunity has been granted subject to conditions, and these conditions have now been met, no further action is required by the CDPP in granting final criminal immunity.