by Olivia Dixon and Jennifer G. Hill
In late February 2021, the Australian Securities and Investments Commission (“ASIC”) released a new policy[1] regarding immunity for a range of offences under Australian corporate law (the “ASIC policy”). The ASIC policy covers offences predominantly falling under the ‘market misconduct’ provisions of Part 7.10 of the Australian Corporations Act 2001 (“the Act”) and includes serious offences, such as market manipulation, insider trading and dishonest conduct in the course of operating a financial services business. The ASIC policy also contemplates criminal immunity being provided for “other Commonwealth offences connected with the Pt 7.10 offence.” Such offences may include ancillary liability offences such as aiding and abetting; breach of director’s duties; false accounting; and money laundering.
The ASIC policy is not entirely novel under Australian law. Its provisions closely resemble an immunity and cooperation policy for cartel conduct, most recently updated in 2019, by another regulator, the Australian Competition & Consumer Commission (the “ACCC policy”).[2] The ACCC policy offers two forms of leniency for cartel participants who are willing to assist the ACCC in its investigation: (i) immunity: the first cartel participant to approach the ACCC may be granted conditional immunity from civil enforcement actions, and potentially from criminal actions if it meets the necessary criteria; or (ii) cooperation: if a cartel participant fails to meet the criteria for conditional immunity, it may still receive leniency from the ACCC or the court if it cooperates in the ACCC’s investigation.