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University of Wollongong Thesis Collection
1954-2016
University of Wollongong Thesis Collections
2016
The Australian Competition and Consumer Commission Immunity Policy The Australian Competition and Consumer Commission Immunity Policy
for Cartel Conduct: A Critical Legal Analysis for Cartel Conduct: A Critical Legal Analysis
Pariz Lythgo-Marshall
University of Wollongong
Follow this and additional works at: https://ro.uow.edu.au/theses
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Recommended Citation Recommended Citation
Lythgo-Marshall, Pariz, The Australian Competition and Consumer Commission Immunity Policy for Cartel
Conduct: A Critical Legal Analysis, Doctor of Philosophy thesis, Faculty of Law, Humanities and the Arts,
University of Wollongong, 2016. https://ro.uow.edu.au/theses/4636
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The Australian Competition and Consumer Commission
Immunity Policy for Cartel Conduct: A Critical Legal
Analysis
This thesis is submitted in fulfilment of the requirements for the
award of the degree
DOCTOR OF PHILOSOPHY
from
University of Wollongong
Pariz Lythgo-Marshall, BA LLB (HONS)
Faculty of Law, Arts & Humanities
School of Law
September 2015
i
ABSTRACT
This thesis provides a critical legal analysis of the Australian Competition
and Consumer Commission’s Immunity Policy for Cartel Conduct. The Immunity
Policy is touted as the ‘most effective anti-cartel enforcement tool in the world’ as it
aims to increase cartel detection and deterrence by offering the first cartel participant
full immunity from civil and criminal penalties. This thesis presents a detailed
examination of the theory underpinning the policy’s design and intended operation to
question whether the current model of assessing the effectiveness of the policy needs
to be enhanced in light of more recent theoretical developments.
Building upon this analysis, this thesis employs: a qualitative and cross-
comparative investigation into the eligibility and cooperation requirements of the
policy; an analysis of how the policy intersects with public and private enforcement
within Australia and how this impacts upon confidentiality and third party actions;
and a critical examination of some alternative measures to increase cartel detection
and deterrence in addition to immunity.
Despite the lionised rhetoric that surrounds the use of immunity policies
worldwide, these claims are largely untested. Given the nature of cartel conduct,
many quantitative assessments of the Immunity Policy are generated from
incomplete or unknown information about cartel conduct and heavily rely on
overgeneralised conceptions of rationality to inform the economic modelling upon
which these studies are based. As a result, the research in relation to the Immunity
Policy is currently quantitatively skewed and in need of a comprehensive analysis
using qualitative methods to provide valuable and unique insight into the design and
actual operation of the policy.
A qualitative and cross-comparative analysis was conducted to assist that
analysis. Semi-structured interviews were conducted with 16 prominent stakeholders
in Australia to provide detailed insight into the current design and operation of the
policy. This qualitative study helped inform the content and structure of the cross
comparative research. To complement these empirical insights, the respective
immunity policies in Canada, the United Kingdom and the United States were
analysed and compared to the Australian version to develop a model of best practice.
ii
As a result of this analysis, this thesis finds that the current approach to
assessing the effectiveness of the Immunity Policy is narrow and outdated. To
overcome these limitations, an enhanced model is developed, which is used to inform
the recommendations produced by the research. The use of this enhanced approach to
the assessment of the Immunity Policy will ultimately strengthen the Immunity
Policy and the recommendations made are therefore commended for adoption by the
ACCC.
This thesis reveals that there are a number of limitations inherent in the
design and operation of the Policy, including the approach most commonly used to
assess its effectiveness in achieving cartel detection and deterrence. In light of this,
the Immunity Policy should not be viewed as the single most effective anti-cartel
enforcement tool but as one important component of the ACCC’s overall
enforcement armory.
Most importantly, in order for this claim to be truly tested, there is a need for
the ACCC to implement viable alternative measures to Immunity, as outlined in this
thesis, which can also achieve cartel detection and deterrence and prevent the
overreliance on a single enforcement tool.