Prior to the ACCC’s recent review of the Immunity Policy, an immunity applicant could be excluded from immunity if it could be shown that the applicant was the ‘clear leader’ of the cartel.83 A majority of the interviewees supported the removal of the ringleader requirement. For those in favour of removing the requirement, the most common argument made in support of this was the difficulty associated with determining who the cartel ringleader is, particularly in a two-party cartel:
Interviewee: I’d get rid of it. I don’t think it adds anything. Personally I’d get rid of it. I’ve been in two party cartels but you know it’s pretty hard to sort of work out who the ring leader is when there’s only two. Even when there is, it’s sort of not real world. People aren’t, there might be somebody who writes more emails or someone that’s more active but you’re all in it... Like I just think it’s an unnecessary requirement and in practice that doesn’t work. Someone might start off as the ringleader and then someone else may assume the captain’s armband and then it moves through a continuum. I just don’t see it being a useful aspect.84
Consistent with the concept of ‘effectiveness’, many of the interviewees who supported the removal of the requirement claimed that it was ‘impractical and unnecessary’85 or that there was no ‘utility’ in keeping it.86 There were those who felt that they had never been asked in practice about whether their client was, or could potentially be, the ringleader when applying for immunity or at least it was never formally investigated.87 Due to the fact that the ringleader question is often never asked or properly investigated, some interviewees felt that there was no need for it,
81 Ibid 27. 82 Ibid 28.
83 This requirement has been replaced by the coercion requirement: Australian Competition and
Consumer Commission, above n 27, ss 16(a)(iv), 22 (a)(iv).
84 Interviewee 2 (Sydney, 22nd July 2013) 10. 85 Ibid; Interviewee 4 (Sydney, 17.06.2013) 17. 86 Interviewee 5 (Sydney, 25th July 2013) 4.
87 Interviewee 4 (Sydney, 17.06.2013) 17; Interviewee 7 (Melbourne, 16th April 2013) 10; Interviewee
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as it does not serve a function or purpose. This did not hold true for all the interviewees, as one interviewee in particular indicated that they had been asked the ringleader question in a two-party cartel and had ‘to give the ACCC satisfaction that our client wasn’t the ringleader.’88
When questioned about whether the ringleader requirement may serve a ‘moral’ purpose, in terms of excluding a particularly culpable cartel member from being granted immunity, there was one interviewee who felt that they all cartel members are ‘essentially equally culpable’89 and therefore maintaining the requirement will not be serving any ‘moral’ purpose. Another interviewee felt that even if the requirement does serve a moral purpose, the requirement can also lead to the maintenance of cartels:
Interviewee: Going back to that moral culpability perspective, there’s a real push back on maintaining it, I think. I tend to think that hanging onto it can actually keep cartels going because everybody in the cartel that’s a ringleader will know that they won’t necessarily get immunity if they go through the door so there’s more trust…
PM: … that’s very true.
Interviewee: Whereas if you didn’t have that scenario then the ring leader could go through the door at any time and do great harm to its competitors.90
Overall, the general support for the removal of the requirement is consistent with the fact that the ACCC is reluctant to put up any barriers that may prevent an applicant applying for immunity.91 As one interviewee suggested, this may be at the expense of cartel recidivism rates rising.92
For those who opposed the removal of the ringleader requirement, it was felt that as long as it is not acting as a disincentive to immunity applicants, then there is no harm in keeping it. There was also one interviewee who opposed the removal of the requirement on moral grounds:
Interviewee: … if you go back to sort of all the underlying moral issues about someone being able to escape liability for this sort of conduct, if you’re dealing with a situation where one participant has sort of bullied or coerced other participants into this illegal arrangement then I
88 Interviewee 9 (Sydney, 15th July 2013) 11. 89 Interviewee 2 (Sydney, 22nd July 2013) 10. 90 Interviewee 13 (Sydney, 22nd July 2013 ) 17. 91 Interviewee 12 (Sydney, 19th August 2013) 26. 92 Interviewee 3 (Melbourne, 26th April 2013) 13.
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think morally I would say it’s wrong for that person to be able to obtain full immunity for what they’ve done.93
One of the interviewees also indicated that even though the ringleader requirement may not seem to be enforced seriously by the ACCC, there is a likelihood that the CDPP will take the issue of a ringleader involved in the cartel applying for immunity more seriously, which could potentially affect the CDPP’s decision to grant immunity.94
The interviewees were also asked whether a ‘coercion-style’ test, such as that adopted by the Canadian Competition Bureau or the United Kingdom CMA, would provide a more suitable alternative to the ringleader requirement.95 From the responses, there were those who felt that the element of ‘coercion’ was not a distinguishing element, as cartels are by their very nature consensual.96 Therefore, it was stated that the coercion test could potentially encounter the same difficulties as the ringleader requirement and thus is not a suitable alternative.
On the other hand, there were interviewees who felt that the coercion test would be more useful as long as it identifies the coercer as the ‘driving force in relation to the conduct.’97 Another interviewee felt that the Canadian influence in this regard would be positive, and that the ACCC should consider the coercion test in lieu of the ringleader requirement.98 Overall, there was no general consensus as to whether coercion is a viable alternative to the ringleader requirement. Despite this lack of consensus, the coercion test replaced the ringleader requirement in the revised Immunity Policy.99
93 Interviewee 9 (Sydney, 15th July 2013) 12. 94 Interviewee 5 (Sydney, 25th July 2013) 4.
95 See, eg, Competition Bureau, ‘Adjustments to the Immunity Program and the Bureau’s response to
consultation submissions’ (Discussion Paper, Competition Bureau, 11 May 2011); Competition Bureau Canada ‘Immunity Program: Frequently Asked Questions’ (Competition Bureau 60784, 7 June 2010); Competition and Markets Authority, 'Applications for Leniency and No-Action in Cartel Cases - Detailed Guidance on the Principles and Process' (Competition and Markets Authority, 2013) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/284417/OFT1495.pdf >, s 2.50-2.59.
96 Interviewee 8 (Sydney, 15th July 2013) 18. 97 Interviewee 9 (Sydney, 15th July 2013) 12. 98 Interviewee 13 (Sydney, 22nd July 2013) 18.
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