Immunity Policy: Revolution or Religion? An Australian Case-Study

"Immunity (leniency) policies are widely regarded as having revolutionised anti-cartel law enforcement. However, the generally unquestioning and universalist approach taken to such policies by competition authorities has as much the hallmarks of religion as it does revolution. Drawing on experience with the Australian Competition and Consumer Commission’s Immunity Policy for Cartel Conduct as a case study, this paper suggests that there is value in a more searching approach to immunity policy. It explores the insights available from a critical analysis of the role, operation and effectiveness of an immunity policy in the context of a specific jurisdiction. The analysis examines the extent to which the policy does and should adhere to the strict orthodoxy associated with immunity policy design and administration; the extent to which it is effective in facilitating detection, prosecution and deterrence of cartel conduct and the challenges involved in effectiveness-testing; the policy’s interaction with other aspects of the overall system for enforcement and compliance and the degree to which the policy is consistent with the competition authority’s constitutional values."

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