The Australian Securities and Investments Commission’s New Immunity Policy: An Evaluation

Abstract

In February 2021, the Australian Securities and Investments Commission (‘ASIC’) launched an immunity policy for market misconduct offences. The immunity policy is likely the first to be introduced outside the anti-cartel enforcement context. This article considers the available literature on immunity policies and discuss what lessons may follow for ASIC’s immunity policy. It outlines the ASIC Immunity Policy, including the eligibility criteria for immunity and the application process; considers the advantages and disadvantages of immunity policies identified in the literature on immunity policies; discusses the available empirical data on the effectiveness of the cartel immunity policies of Australia, the United States, the European Union and Korea; and highlights some of the potential issues in the design of the ASIC Immunity Policy. It concludes that it is highly uncertain that the ASIC Immunity Policy will work effectively to enhance the detection and deterrence of market misconduct.

Keywords: immunity policies; corporate and securities law enforcement; Australian Securities and Investments Commssion