28 August 2019
PDF version [687KB]
Cat Barker
Foreign Affairs, Defence and
Security
Executive
summary
- The Organisation for Economic Cooperation and Development (OECD)
adopted the Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions on 21 November 1997 in recognition
of the widespread phenomenon of bribery in international business transactions.
The Convention entered into force on 15 February 1999 and has been
ratified by 44 countries, including Australia. The principal obligation of
Parties to the Convention is the criminalisation of bribery of foreign public
officials.
- Australia moved relatively quickly to ratify the Convention and
implement it domestically through legislation, but for several years lagged
behind some other countries in its enforcement of the Convention. The first
Australian prosecutions for foreign bribery commenced in 2011, and since then, seven
convictions have been obtained across two prosecutions.
- Australia underwent its fourth formal evaluation against the
Convention in 2017. The evaluation noted significant improvements in
Australia’s enforcement of the Convention since the previous evaluation,
completed in 2012.
- Developments over the intervening period included the
establishment of a Fraud and Anti-Corruption business area in the Australian
Federal Police and the re-opening of several matters in 2013, funding for three
dedicated investigation teams in 2016 and legislative amendments that commenced
in 2015 and 2016. A Bill introduced in 2017 would have expanded Australia’s
foreign bribery offence in several respects and introduced a deferred
prosecution agreement scheme for serious corporate crimes, including foreign
bribery. However, it lapsed ahead of the 2019 election.
- While the 2017 evaluation recognised positive developments, it
also recommended several additional measures, as did a Senate inquiry completed
in March 2018. The recommendations in the two reports provide a useful starting
point for consideration of measures to further improve Australia’s compliance
with the Convention and its broader response to foreign bribery.
Contents
Executive summary
Introduction
Obligations of Parties to the
Convention
Monitoring of Parties’ implementation
of the Convention
OECD Working Group on Bribery in
International Business Transactions
Transparency International
Australia’s implementation of the
Convention
Key components of Australia’s
legislative framework
Institutional arrangements and key
non-legislative measuring
Investigation and prosecution
Education and awareness
International cooperation
Investigations and prosecutions
Securency and Note Printing Australia
Lifese
OECD Working Group and TI assessments
of Australia
OECD Working Group Phase 1 evaluation:
1999
OECD Working Group Phase 2 evaluation:
2006
OECD Working Group Phase 3 evaluation:
2012
OECD Working Group Phase 4 evaluation:
2017
TI assessments
Recent developments
Investigations and investigative
capacity
Recent and proposed legislative
reforms to foreign bribery laws
Proposed deferred prosecution
agreement scheme
Senate Standing Committee on Economics
inquiry
Conclusion
All hyperlinks in this paper are correct as at August 2019.
Introduction
The Organisation for Economic Co-operation
and Development (OECD) adopted the Convention
on Combating Bribery of Foreign Public Officials in International Business
Transactions (the Convention) on 21 November 1997 in
recognition of the widespread phenomenon of bribery in international business
transactions. The Convention entered into force on 15 February 1999
and at the date this paper was published, had been ratified by all 36 member
countries of the OECD (of which Australia is one) and Argentina, Brazil,
Bulgaria, Colombia, Costa Rica, Peru, Russia and South Africa.[1]
The Convention is one of the key international instruments
on corruption, along with the 2005 United
Nations Convention against Corruption (UNCAC), which Australia
has also ratified.[2]
The focus of the Convention is on the ‘supply side’ of bribery—that is, the
offer, promise or giving of a bribe, as opposed to the solicitation, acceptance
or receipt of a bribe.[3]
Australia ratified the Convention in 1999 and underwent
its fourth formal evaluation against the Convention in 2017. This paper
outlines the obligations of Parties to the Convention and how implementation is
monitored, before examining Australia’s implementation of the Convention,
including progress between the third and fourth evaluations, and the
recommendations contained in the latest assessment.
Obligations
of Parties to the Convention
The principal obligation of Parties to the Convention is the
criminalisation of bribery of foreign public officials. The Convention requires
each Party to make it a criminal offence under its domestic law for any person
intentionally to offer, promise or give any undue pecuniary or other advantage
to a foreign public official so as to influence the official in the performance
of his or her official duties, in order to obtain or retain a business or other
improper advantage in the conduct of international business.[4]
Parties are not required to criminalise small ‘facilitation’ payments that are
made in some countries to induce public officials to perform routine functions
such as issuing licences or permits (though, as outlined below, a 2009
Recommendation requires Parties to encourage companies to prohibit or
discourage such payments).[5]
Parties are also required to establish that complicity in an
act of bribery of a foreign official is a criminal offence, and that an attempt
or conspiracy to bribe a foreign official are offences to the same extent as an
attempt or conspiracy to bribe a domestic public official.[6]
The Convention further requires Parties to ensure that the offence of bribery
of a foreign public official applies to both legal and natural persons.[7]
The Convention requires Parties to apply effective,
proportionate and dissuasive criminal penalties, including, in the case of
natural persons, deprivation of liberty sufficient to enable effective mutual
legal assistance and extradition.[8]
Parties are required to establish jurisdiction over the offence of bribery of a
foreign public official where it is committed in whole or in part in their
territory, and, if they have jurisdiction to prosecute their nationals for
offences committed abroad, where the offence is committed outside its territory
by one of its nationals.[9]
Additional obligations of
Parties under the Convention include:
- taking measures so that the bribe and the proceeds of the bribe,
or property to the value of those proceeds, may be seized and confiscated or
that monetary sanctions of comparable effect apply
- considering the imposition of additional civil or administrative
sanctions for bribery of foreign public officials
- taking measures to prohibit: the establishment of off-the-books-accounts;
making of off‑the‑books or inadequately identified transactions;
recording of non-existent expenditures; entry of liabilities with incorrect
identification of their object and the use of false documents by companies for
the purpose of bribing foreign public officials or concealing such bribery; and
taking measures to establish effective, proportionate and dissuasive civil,
administrative or criminal penalties for such conduct and
- to the extent possible under Parties’ laws, providing prompt and
effective legal assistance to other Parties for the purposes of criminal
investigations and criminal and non‑criminal proceedings within the scope
of the Convention and facilitating extradition for the purpose of a prosecution
for an offence of bribery of a foreign public official.[10]
In addition to the obligations imposed under the Convention,
signatories must accept the 1997 Revised
Recommendation of the Council on Combating Bribery in International Business
Transactions, which contains non-criminal measures for combating
transnational bribery.[11]
The Recommendation asks parties to disallow tax deductibility of bribes to
foreign public officials; implement measures to require companies to maintain
transparent accounts; adopt practices to deter corruption in public procurement
and ensure independent external auditing requirements are adequate; and
encourage development of internal company controls.[12]
Several related
Recommendations have been adopted by Parties since the Convention came into
force, in particular:
The Recommendation of the
Council for Further Combating Bribery of Foreign Public Officials in
International Business Transactions was adopted following a review of the
Convention and related instruments. It builds on the Convention obligations by
calling on Parties to, among other things:
- periodically review domestic laws established to implement the
Convention and their approach to enforcing such laws
- periodically review their policies and approach to small
facilitation payments and encourage companies to prohibit or discourage them
- ensure effective channels are in place for reporting suspected
foreign bribery and ensure adequate protection of those who make such reports
and
- work towards improved international cooperation to share
information and evidence in support of foreign bribery investigations and
prosecutions and the seizure and confiscation of the proceeds of foreign
bribery.[14]
Attached to the Recommendation are guidelines for Parties on
good practice in implementing specific articles of the Convention and for
companies on internal controls, ethics and compliance.
Monitoring
of Parties’ implementation of the Convention
OECD
Working Group on Bribery in International Business Transactions
The Convention requires Parties to cooperate in undertaking
systematic monitoring to promote full implementation of the Convention.[15]
The OECD Working Group on Bribery in International Business Transactions (the
OECD Working Group), which comprises representatives from the Parties to the
Convention, undertakes this function in accordance with a set of agreed
principles.[16]
The Working Group prepares a report on each assessment, outlining its findings
and setting out recommendations to the State Party. The State Party is then
required to provide follow-up reports within particular timeframes on its
implementation of those recommendations.
Monitoring has been conducted by the Working Group in
phases. The first phase focused on evaluating the adequacy of the legislation
Parties had in place to implement the Convention; the second on whether Parties
were applying their legislation effectively; and the third on enforcement and
other cross-cutting issues, and progress on implementing earlier
recommendations. Phase 1, Phase 2, and Phase 3 assessments have
been conducted for most Parties (only those who became Parties more recently
are undergoing earlier stages). The fourth phase focuses on enforcement and
cross-cutting issues (tailored to specific country needs) and progress on
implementing outstanding recommendations from the third phase.[17]
Phase 3, completed between 2010 and 2014, was the first
assessment to be conducted under a permanent cycle of peer review. Evaluations
under Phase 4 began in 2016 and are scheduled to be completed by 2024,
with a report on Australia released in December 2017.[18]
Transparency
International
Transparency International (TI) is an international
non-government organisation that works to combat corruption. TI publishes a
range of regular reports on corruption issues, including a Corruption
Perceptions Index and a Bribe Payers Index.[19]
From 2005 to 2015 and in 2018, TI published independent progress reports on
enforcement of the Convention by state Parties.[20]
The reports are based on information provided by national experts in each
country, who take into account the views of government officials and other
experts, and reports of the OECD Working Group.[21]
Countries are classified into one of four categories, based
on the number and significance of cases and investigations, and taking account
of the scale of the country’s exports:
... A country that is an Active enforcer initiates many
investigations into foreign bribery offences, these investigations reach the
courts, the authorities press charges and courts convict individuals and/or
companies both in ordinary cases and in major cases in which bribers are
convicted and receive substantial sanctions.
“Moderate Enforcement” and “Limited Enforcement” indicate
stages of progress, but are considered insufficient deterrence. Where there is
“Little or No Enforcement”, there is no deterrence ...[22]
In preparing its reports, TI examines progress and issues
country by country, as well as overall enforcement, and makes findings and
recommendations accordingly. While there is no obligation on Parties to
implement recommendations made by TI, the annual reports are a useful indicator
of both overall progress and the progress of specific Parties’ implementation
of the Convention in between the less frequent but more comprehensive
assessments conducted by the Working Group.
TI’s 2018 progress report
contained the following overarching recommendations:[23]
- Parties and other major exporters should:
- ‘scale
up’ their foreign bribery enforcement by addressing weaknesses in their legal
frameworks and enforcement systems and improving detection of foreign bribery
through anti-money laundering systems and, for countries whose performance has
deteriorated, reviewing and addressing the underlying causes
- ensure
that ‘settlements in bribery cases meet adequate standards of transparency,
accountability and due process’, including by making settlements public and
involving affected countries and groups in settlement procedures
- publish
up-to-date data and case information on foreign bribery cases, including annual
statistics on investigations and cases opened and concluded and
- increase
efforts to improve mutual legal assistance in foreign bribery cases, including
by ensuring adequate resourcing and increasing the use of joint investigation
teams.
- The OECD Working Group should:
- ‘disseminate
widely’ an annual list of Parties that have failed to produce meaningful
enforcement results in the preceding three to four years, and an annual summary
of Working Group recommendations with which Parties have failed to comply
- publish
an annual list of Parties that have taken significant steps to improve enforcement
- develop
guidance on settlements in bribery cases
- assess
the accessibility of data and case information on foreign bribery cases across
all Parties, and develop an open database of such information
- assess
all Parties’ performance on mutual legal assistance, and work with other
relevant bodies to develop guidance and support sharing of experience and
- increase
its efforts to persuade China, Hong Kong, India and Singapore to accede to the
Anti-Bribery Convention (given they each account for two per cent or
more of world exports).
Australia’s
implementation of the Convention
Australia moved relatively quickly to ratify the Convention
and implement it domestically through legislation, but for several years lagged
behind some other countries in its enforcement of the Convention. The first
Australian prosecutions for foreign bribery commenced in 2011, and since then
several convictions have been obtained. The OECD Working Group noted
significant improvements in Australia’s enforcement of the Convention between the
Phase 3 and Phase 4 reports, and further reforms are currently before
Parliament. Some additional measures were recommended in the OECD Working
Group’s Phase 4 report and by the Senate Standing Committee on Economics in its
2018 report on its inquiry into foreign bribery.
Key components of Australia’s legislative
framework[24]
The Criminal Code Amendment (Bribery of Foreign
Officials) Act 1999 commenced on 17 December 1999 and the Convention
came into force in Australia on the same date.[25]
The Act inserted a new Division into the Criminal Code Act
1995 (Criminal Code) to criminalise the bribery of foreign
public officials.[26]
Section 70.2 of the Criminal Code provides
that it is an offence to provide, offer or promise to provide, or cause a
benefit to be provided to another person, with the intention of influencing a
foreign public official in the exercise of his or her duties, in order to
obtain or retain business, or a business advantage, that is not legitimately
due to the recipient or intended recipient. The offence is punishable by up to
10 years imprisonment, a fine of up to 10,000 penalty units (currently
$2.1 million) or both for an individual. For a corporation, the maximum
penalty is the greater of 100,000 penalty units (currently $21 million) or
three times the value of the benefit obtained by the corporation (where it can
be ascertained) or ten per cent of the annual turnover of the corporation
(where the benefit obtained cannot be determined).[27]
The offence applies where the conduct constituting the
offence occurs wholly or partly in Australia or where the conduct constituting
the offence occurs wholly outside Australia and at the time of the alleged offence,
the person was an Australian citizen or resident or was a body corporate
incorporated by or under an Australian law.[28]
Division 11 of the Criminal Code applies to the
offence to provide for ancillary offences including complicity, attempt and
conspiracy. A person who attempts, conspires or is complicit in the commission
of an offence faces the same penalties that apply to the primary offence.
Sections 70.3 and 70.4 of the Criminal Code
provide defences to the offence in section 70.2 in situations where:
- the conduct is lawful in the foreign official’s country (the
lawful conduct defence) or
- the benefit was of a minor nature, the conduct was engaged in for
the sole or dominant purpose of expediting or securing the performance of a
routine government action of a minor nature and an appropriate record was made
and retained (the facilitation payment defence).
The lawful conduct defence initially applied where it
could be established that the conduct would not have constituted an offence
against a law in place in the foreign official’s country. This was amended in
2007, following criticism from the OECD Working Group and the findings of an
inquiry into the conduct of the Australian Wheat Board (AWB) and other
Australian companies involved in the UN Oil-for-Food Programme.[29]
The defence now applies only where it can be established that a written law of
the foreign official’s country requires or permits the provision of the
benefit.[30]
The provisions outlined above reflect the key requirements
outlined in Articles 1, 2 and 4 of the Convention (and go some
way to satisfying Article 3, which covers offence penalties and other
sanctions). Other Commonwealth legislation relevant to the implementation of
the Convention includes:
- Division 490 of the Criminal Code (Convention
Article 8—false accounting)
- the Proceeds
of Crime Act 2002 (Convention Article 3(3)—forfeiture of
bribes paid and proceeds of foreign bribery; Convention Article 7—foreign
bribery as a predicate offence for money laundering provisions)
- the Corporations
Act 2001 (Convention Article 3(4)—civil and administrative
sanctions; Convention Article 8—accounting and auditing requirements and
penalties for breaches) and
- the Mutual Assistance
in Criminal Matters Act 1987 and the Extradition
Act 1988 (Convention Articles 9 and 10 respectively).[31]
Institutional arrangements and
key non-legislative measures[32]
Investigation and prosecution
The Australian Federal Police (AFP) is responsible for the
investigation of foreign bribery offences. The Australian Securities and
Investments Commission (ASIC) is responsible for investigating breaches of the Corporations Act,
including breaches of directors’, officers’ or auditors’ duties, which may
occur alongside foreign bribery.[33]
The Commonwealth Director of Public Prosecutions (CDPP) is responsible for
prosecutions.
The AFP evaluates matters referred to it in accordance with
its Case Categorisation and Prioritisation Model (CCPM), including
consideration of the incident type, its impact on Australian society, its
priority for the AFP and the referrer, and the resources required.[34]
Foreign and domestic bribery are included in the second highest of four categories
under the ‘impact’ element and obligations under international treaties in the
second highest of four under the ‘priority’ element of the CCPM.[35]
The AFP established a Fraud and Anti-Corruption (FAC)
business area in February 2013 to improve the agency’s response to serious
and complex fraud and corruption, including foreign bribery.[36]
The FAC Centre was opened within that business area in July 2014. The
Centre is hosted and led by the AFP, but is a multi-agency initiative with
representation from several other agencies and departments, including the
Australian Taxation Office (ATO), Australian Criminal Intelligence Commission, ASIC,
Department of Foreign Affairs and Trade (DFAT), and the Australian Transaction
Reports and Analysis Centre. The Attorney-General’s Department (AGD) and CDPP
are advisory members.[37]
Foreign bribery matters are evaluated by the FAC Centre and if they proceed to
investigation, are investigated by one of the specialist foreign bribery teams
(based in Sydney, Melbourne and Perth) or other investigators in the FAC
business area.[38]
The CDPP’s decisions about whether to institute or continue
proceedings are made in accordance with the Prosecution Policy of the
Commonwealth.[39]
While the policy sets out matters to be considered in such decisions, it does
not give higher priority to any particular types of offences. The CDPP moved
from a regionally based model to one based on crime types from June 2014,
with all foreign bribery referrals now handled by the Commercial Financial and
Corruption Practice Group.[40]
The CDPP is not directly involved in investigations. However, it provides
advice to investigative agencies throughout the course of investigations ‘to
assist in better focussing and improving the quality of those investigations’.[41]
Education and awareness
A range of initiatives led by the Australian Government aim
to raise awareness about the foreign bribery offence, as well as associated
record keeping and reporting requirements, and encourage the establishment of
internal control mechanisms covering corruption, such as guidelines and codes
of conduct, across the private sector.[42]
AGD is the lead agency for raising awareness of the foreign
bribery offence, and coordinates outreach and awareness-raising activities
across the Australian Government. Other agencies involved in training and
raising awareness across the public sector (including state and territory
police) and private sectors include DFAT, the AFP, ASIC, the Australian Trade
and Investment Commission (Austrade), the ATO, and the Export Finance and
Insurance Corporation.[43]
International cooperation
The International Crime Cooperation Central Authority within
AGD is the central authority for all formal requests for international criminal
cooperation, including mutual legal assistance and extradition.[44]
The AFP seeks and provides police-to-police assistance on
criminal matters, including through its International Liaison Network.[45]
The AFP joined the International Foreign Bribery Taskforce in 2013.[46]
The Taskforce was established in 2011 and formalised through an agreement in
2013. [47]
The other members are the US Federal Bureau of Investigation, City of London
Police and the Royal Canadian Mounted Police. The Taskforce aims to improve the
law enforcement response to foreign bribery by sharing knowledge, skills,
methodologies and case studies. These agencies are reportedly in contact almost
daily to share information, and personnel are often seconded between agencies.[48]
AGD leads Australia’s engagement with the OECD Working
Group, as well as other regional and international anti-corruption forums.[49]
Investigations and
prosecutions
The OECD Working Group’s 2006 Phase 2 report on Australia indicated
that the AFP had opened three foreign bribery investigations, one of which had
been terminated and two of which were ongoing.[50]
The OECD Working Group’s 2012 Phase 3 report noted that the
AFP had received 28 allegations of foreign bribery involving Australian
companies and individuals since the Phase 2 report, and of those, 12 had been
evaluated but terminated without an investigation; nine had been investigated
but were finalised without charges being laid; and seven cases were ongoing
(including one in which charges had been laid).[51]
On 31 October 2017, the AFP advised that the FAC
Centre had received 37 foreign bribery referrals since 1 July 2014.[52]
Including matters that pre-dated the establishment of the FAC but remained
current, there were as at 31 October 2017:
- 18 ongoing investigations (13 of which had been publicly
declared)
- 14 matters subject to ongoing evaluation (a process of
determining whether to open a formal investigation) and
- several matters that had been referred to the CDPP, including one
finalised case and one still before the court.[53]
On the same day, the CDPP advised that seven persons had
been convicted of foreign bribery offences and one for a state false accounting
offence related to a foreign bribery matter.[54]
These convictions were obtained across two prosecutions, both involving
multiple defendants, as outlined below.
Securency and Note Printing
Australia
The first Australian prosecutions for foreign bribery were
initiated on 1 July 2011, when the AFP laid charges against two Australian
companies—Securency International Pty Ltd and Note Printing Australia (NPA)
Limited—and six individuals for bribery of foreign officials.[55]
Additional charges were laid, and a further three individuals were charged with
foreign bribery, in August and September 2011 and March 2013.[56]
The charges related to bribes allegedly paid to public officials in Indonesia,
Malaysia, Vietnam and Nepal between 1999 and 2005, the allegations being
that senior managers from Securency and NPA used international sales agents to
bribe foreign public officials to secure banknote contracts.[57]
Securency and NPA pleaded guilty to three charges each of
conspiracy to bribe foreign public officials in October 2011.[58]
Securency was ordered to pay a penalty of $19.8m under the Proceeds of Crime
Act and fines totalling $480,000. NPA was ordered to pay a penalty of $1.9m
under the Proceeds of Crime Act and fines totalling $450,000.[59]
Three individuals pleaded guilty to conspiracy to bribe
foreign public officials, two of whom were sentenced to two years and six
months imprisonment, and the third to two years imprisonment.[60]
All three were released on recognizance orders (requiring them to be of good
behaviour for a specified period).[61]
One of those individuals and two others pleaded guilty to false accounting in
relation to payment of commissions to a Malaysian agent.[62]
Proceedings against a further four individuals were permanently stayed by the
High Court on the basis that continued prosecutions of those individuals ‘would
bring the administration of justice into disrepute’, following unlawful
compulsory examinations conducted by what is now the Australian Criminal
Intelligence Commission.[63]
The AFP commenced the investigation that led to these cases
in May 2009, following a referral from the Chairman of Securency. The
investigation ran concurrently with related investigations being pursued by
overseas law enforcement agencies and has involved cooperation with the UK’s
Serious Fraud Office, the Malaysian Anti-Corruption Commission and Attorney-General’s
Chambers and the Indonesian National Police.[64]
Lifese
In February 2015 the AFP charged three individuals with
conspiracy to bribe a foreign public official.[65]
In July 2017 the three men pleaded guilty to the charges, which
concerned payment of a US$1 million bribe to a foreign official to secure
contracts for their construction company, Lifese, in Iraq.[66]
Much of the evidence relied upon in the prosecution was from intercepted
telephone conversations, with the first telecommunications interception warrant
obtained by the AFP in March 2014.[67]
The three men were each sentenced to four years imprisonment, with a non-parole
period of two years, commencing from the date of sentencing
(27 September 2017). Two of the men, Ibrahim and Mamdouh Elomar, were
also fined $250,000 each.[68]
OECD
Working Group and TI assessments of Australia
OECD Working Group Phase 1
evaluation: 1999
As noted above, the Phase 1 evaluations conducted by
the OECD Working Group focused on the adequacy of Parties’ legislation. In its
1999 Phase 1 report on Australia, the Working Group identified two issues
for further consideration: the formulation of the lawful conduct defence and
the maximum penalties available for the foreign bribery offence. However,
overall, the Working Group considered that Australia’s legislation conformed to
the standards set by the Convention.[69]
As outlined elsewhere in this paper, the two issues identified have both since
been addressed.[70]
OECD Working Group Phase 2
evaluation: 2006
The OECD Working Group’s 2006 Phase 2 report
assessed how effectively Australia was applying its legislation, and outlined a
much broader range of issues requiring action.
The Working Group considered that Australian authorities
demonstrated a strong commitment to combating foreign bribery, and welcomed
initiatives to raise awareness of the offences across the public sector and
Australia’s commitment to supporting good governance in partner countries.[71]
However, it identified several areas for improvement and made
22 recommendations on how Australia could ensure effective prevention,
detection and investigation of foreign bribery and ensure effective prosecution
and sanction of foreign bribery and related offences.[72]
The Working Group assessed Australia’s implementation of
those recommendations in a follow up report released in 2008 and again as part
of the Phase 3 evaluation. It assessed Australia to have fully implemented
15 of the 22 Phase 2 recommendations by the time of the Phase 3
evaluation, with six partially implemented and one not implemented.[73]
The one recommendation that the Working Group still assessed
as not having been implemented was raising awareness amongst cash dealers about
foreign bribery as a predicate offence for money laundering, and providing
dealers with guidance on identifying suspicious transactions
(recommendation 1(d)). Two of the partially implemented recommendations
also related to awareness-raising, across the private sector generally
(including in relation to facilitation payments) and specifically amongst small
and medium sized enterprises (recommendations 1(b) and (c)). A further two
related to making sure that the AFP receives and evaluates information about
foreign bribery from particular sources (recommendations 2(b) and (e)). One
related to reporting obligations of external auditors
(recommendation 4(a)), and one to consideration of additional sanctions
and other measures following a conviction for foreign bribery, such as
exclusion from public contracts (recommendation 6(b)).[74]
OECD Working Group Phase 3
evaluation: 2012
The OECD Working Group’s 2012 Phase 3 report identified
several positive developments since the 2008 follow up report, specifically:
- that foreign bribery was becoming a priority for the Australian
Government
- the announcement of the development and implementation of a whole
of government National Anti-Corruption Plan (which was then expected by the end
of 2012, but did not eventuate)
- significant increases to the maximum penalty for legal persons (such
as bodies corporate) for the foreign bribery offence
- public consultation on the existing facilitation defence to the
foreign bribery offence and
- improved sharing of taxation information.[75]
However, the Working Group had ‘serious concerns that
overall enforcement of the foreign bribery offence to date has been extremely
low’:
Only one foreign bribery case has led to prosecutions. These
prosecutions were commenced in 2011 and are on-going. Out of 28 foreign bribery
referrals that have been received by the Australian Federal Police (AFP), 21
have been concluded without charges.[76]
The Working Group made 33 recommendations. In line with the
concerns outlined above, its first recommendation was for Australia to review
its overall approach to enforcement in order to effectively combat
international bribery of foreign public officials.[77]
Another was that the AFP:
- takes sufficient steps to ensure foreign bribery allegations are
not prematurely closed
- be more proactive in gathering information at the
pre-investigative stage
- takes steps to ensure it explores all avenues for exercising
jurisdiction over related legal persons (such as corporations) in foreign
bribery cases
- continues to systematically consider concurrent or joint
investigations with foreign or other domestic law enforcement agencies and
- routinely considers investigations of related charges such as
false accounting and money laundering, especially when a substantive charge of
foreign bribery cannot be proven.[78]
This prompted the AFP to re-evaluate some of the matters
that it previously closed, with an AFP Commander reportedly telling Fairfax
Media ‘We could’ve gone a few extra steps. We are re-evaluating. That doesn’t
mean we are going to open a whole new investigation. [We are ensuring] there is
no stone unturned, that reasonable inquiries have been made’.[79]
Further recommendations included:
- increasing the maximum penalty that applies to legal persons for
false accounting to a level that is effective, proportionate and dissuasive
- ensuring that the CDPP has sufficient resources to prosecute
foreign bribery cases
- improving awareness among state law enforcement officials and the
private sector, including targeting companies (particularly small and medium
enterprises) that conduct business overseas
- improving foreign bribery reporting requirements across the public
service and for officials and employees of independent statutory authorities
- introducing whistleblower protections for public and private
sector employees who report suspected foreign bribery to competent authorities
in good faith and
- considering concrete steps to encourage companies, ‘in the
strongest terms’, to conduct due diligence on agents, including those referred
to them by Austrade.[80]
The Working Group assessed Australia’s implementation of
those recommendations in a follow-up report released in 2015 and again as part
of the Phase 4 evaluation.[81]
It assessed Australia to have fully implemented 23 of the 33 Phase 3
recommendations by the time of the Phase 4 evaluation, with four partially
implemented and two not implemented.[82]
The two recommendations that the Working Group assessed as
not having been implemented related to:
- ensuring a broad range of mutual legal assistance can be provided
to foreign authorities pursuing civil or administrative proceedings against a
legal person under a legal system that does not provide for corporate criminal
liability (recommendation 11) and
- procuring agencies putting in place transparent policies and
guidelines relating to debarment on the grounds of a foreign bribery conviction
(recommendation 16(a)).[83]
Those assessed as partially implemented related to:
enhancing corporate liability provisions (recommendation 3); exploring all
legal avenues for exercising jurisdiction over related legal persons
(recommendation 8(a)(iii)); providing a clear framework on plea bargaining
and self-reporting (recommendation 9); and raising awareness of foreign
bribery as a predicate offence to money laundering (recommendation 13).[84]
OECD Working Group Phase 4
evaluation: 2017
Overall, the Phase 4 report was more positive than the
previous assessment about Australia’s implementation and enforcement of the
Convention. It identified several positive developments since the Phase 3
report, including ‘substantial institutional changes’ to enhance the
investigation and prosecution of foreign bribery, improved protections for
public sector whistleblowers, amendments to the foreign bribery offence and
introduction of new false accounting offences in 2015, and extensive
awareness-raising relating to facilitation payments.[85]
The Working Group also identified ‘two important initiatives’ that it believed
constitute good practice: establishment of the Fintel Alliance (launched in
2017) and the engagement of AFP’s overseas liaison officers in foreign bribery
investigations.[86]
The Working Group commended
Australia for increasing enforcement of the foreign bribery offence and
securing its first convictions, but considered that ‘in view of the level of
exports and outward investment by Australian companies in jurisdictions and
sectors at high risk for corruption, Australia must continue to increase its
level of enforcement’.[87]
It made 13 recommendations. The Working Group recommended that Australia:
- continues to resource the AFP and CDPP effectively so that the
AFP can continue its enforcement efforts and the CDPP can prosecute foreign
bribery cases at the rate they are expected to be generated (recommendations
2(a) and (b))
- legislates clear, comprehensive protections for private sector
whistleblowers and ensures employees in all sectors are fully apprised of those
protections (recommendation 1(b))
- raises awareness of foreign bribery as a predicate offence for
money laundering, particularly in the real estate sector, and addresses the
risk that proceeds of foreign bribery could be laundered through the real
estate sector (recommendation 1(a))
- pursues confiscation of bribe payments and their proceeds where
appropriate (recommendation 4(a))
- has procuring agencies put in place transparent policies and
guidelines relating to debarment on the grounds of a foreign bribery conviction
(recommendation 4(b))
- proactively pursues criminal charges against legal persons for
foreign bribery and related offences (recommendation 5(a))
- finalises, publishes and raises awareness of guidance on
self-reporting of foreign bribery and related offences by corporations, and
provides clear information in the public domain on where a company should go in
order to self-report foreign bribery (recommendations 5(b) and (c))
- finds additional ways to encourage companies, particularly small
and medium-sized enterprises, to develop and adopt adequate prevention and
detection mechanisms, and in the event that Australia enacts an offence of
failing to prevent foreign bribery, closely engages with the private sector on
related guidance on compliance measures (recommendations 6(a) and (b))
- clarifies guidance to tax auditors to minimise the risk of
tipping off taxpayers about current or potential foreign bribery investigations
(recommendation 1(c)) and
- ensures to the fullest extent possible under the Australian legal
system, that mutual legal assistance is provided to parties to the Convention
that apply civil or administrative liability to legal persons for foreign
bribery (recommendation 3).[88]
The Working Group invited Australia to submit a written
report in December 2019 on its implementation of these recommendations.[89]
TI assessments
In its 2018 progress report, which was based on enforcement
for the period 2014–17, TI classified seven countries as having active
enforcement (Germany, Israel, Italy, Norway, Switzerland, the UK and the US),
four as having moderate enforcement (Australia, Brazil, Portugal and Sweden),
eleven as having limited enforcement and twenty-two as having little or no
enforcement.[90]
TI has classified Australia as demonstrating moderate
enforcement since TI introduced its current four categories of enforcement
in 2012 (active, moderate, limited, and little or none).[91]
It had previously included Australia in the lowest of three categories (active,
moderate, and little or none) in its 2009 to 2011 reports.[92]
The change in 2012 reflected the initiation of Australia’s first prosecution
proceedings in 2011 and the eight investigations underway at the time of the
report.[93]
TI’s 2013 report noted several continuing criminal matters and the outcomes of
civil sanctions against former directors and officers of the Australian Wheat
Board for breaches of the Corporations Act.[94]
It also noted inadequacies in the legal framework and enforcement system, some
of which have since been addressed, and the establishment of the Fraud and
Anti-Corruption business area in the AFP.[95]
TI’s 2014 and 2015 progress reports did not include the
individual country analysis provided in earlier reports, but contained some
remarks on Australia in the general commentary. In its 2014 progress report, TI
noted legislative reforms, the commencement of several new investigations, and
the signing of interagency agreements between the AFP and regulatory agencies
as positive developments in Australia.[96]
The 2015 progress report highlighted significant inadequacies in protections
for whistleblowers in the majority of signatories, including for private sector
whistleblowers in Australia.[97]
TI’s 2018 report, which did include individual country
analysis, noted the two cases outlined earlier in this paper and several
ongoing investigations, and the progress outlined below under ‘Recent
developments’. It also identified several deficiencies. The report recommended
that Parliament pass reforms included in a 2017 Bill that has since lapsed;
introduce a deferred prosecution scheme that requires a formal admission of
criminal liability; introduce a debarment scheme; expand anti-money laundering
regulation to include real estate agents, lawyers and accountants; repeal the
facilitation payments defence; expand mutual legal assistance to include civil
and administrative proceedings; continue to adequately resource the AFP and
CDPP; and develop a database of bribery enforcement actions.[98]
Recent developments
Investigations and
investigative capacity
Following on from the OECD Working Group’s Phase 3
report in 2012, significant effort has gone into improving enforcement of the
foreign bribery offence in Australia. As noted above, the report prompted the
AFP to re-evaluate some of the matters it had previously closed, and the FAC business
area and FAC Centre were established in 2013 and 2014, respectively. The FAC
Centre’s functions include evaluating all foreign bribery referrals in
consultation with the Foreign Bribery Panel of Experts to determine whether
they proceed to investigation, conducting quality assurance reviews of key
ongoing investigations, and collecting, analysing, and disseminating data and findings
arising from referrals.[99]
The FAC business area has ongoing funding for around 140 investigators working
across a range of fraud, corruption and bribery matters.[100]
This was supplemented in April 2016 with funding of $14.7 million over
three years (to the end of 2018–19) for three foreign bribery investigative
teams based in Sydney, Melbourne and Perth.[101]
In October 2013, the AFP and ASIC entered into a
memorandum of understanding (MOU) on collaborative working arrangements. The
MOU provides a general framework for cooperation between the agencies on law
enforcement issues and the exchange of information and intelligence, and
includes an annex specific to foreign bribery. The annex, amongst other things,
requires each of the agencies to notify each other of any foreign bribery
referrals where it can be reasonably expected that the jurisdiction of both
might be engaged (the AFP in relation to the Criminal Code and ASIC in
relation to the Corporations Act). In such circumstances, experts from
each agency must work together to consider whether an independent investigation
by the AFP or ASIC, a joint investigation or alternative regulatory or
compliance action is most appropriate. The annex also provides that where there
is sufficient evidence to meet the criminal threshold, Criminal Code
offences will take precedence.[102]
Recent and proposed
legislative reforms to foreign bribery laws
In March 2015, the Government introduced an amendment
to the foreign bribery offence to clarify that it is not necessary for the defendant
to have intended to influence a particular foreign public official for
the offence to apply.[103]
The amendment was passed by Parliament and commenced in November 2015.[104]
This implemented a recommendation of the OECD Working Group’s Phase 3 report on
Australia.[105]
In November 2015, the Government introduced amendments
to the Criminal Code to create new false accounting offences.[106]
Under these amendments, which commenced in March 2016, a person commits an
offence when:
- the person makes, alters, destroys or conceals an accounting
document, or fails to make or alter an accounting document the person is under
a legal duty to make or alter and
- the person intended (under section 490.1) or was reckless as
to whether (under section 490.2) the making, alteration, destruction or
concealment (or failure to make or alter a document) would facilitate, conceal
or disguise the occurrence of:
- the
person or someone else receiving a benefit not legitimately due to him or her
- the
person or someone else giving a benefit not legitimately due to the recipient
or intended recipient and/or
- loss
to another person that is not legitimately incurred and
- one of the circumstances in subsection 490.1(2) applies.[107]
Subsection 490.1(2) lists circumstances that bring the
relevant conduct within the Commonwealth’s constitutional powers. These include
characteristics of the person (for example, where the person is a
constitutional corporation), the location or context of the act or omission
(for example, outside Australia or in concealing a Commonwealth offence) and
characteristics of the document (for example, it is kept for the purposes of a
Commonwealth law).
The maximum penalties for individuals and corporations are
the same as for foreign bribery if intent is proven, and half that amount where
recklessness is proven. While the offences implement a recommendation of the
OECD Working Group’s Phase 3 report on Australia, they are not restricted to
false accounting for the purpose of committing or concealing a foreign bribery
offence.
The Government introduced the
Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017 on
6 December 2017, following public consultations on proposed reforms
earlier that year.[108]
The Bill, which lapsed ahead of the 2019 federal election, would have:
- created a new corporate offence of failing to prevent foreign
bribery (similar to section 7 of the UK’s Bribery Act 2010[109])
- expanded the definition of foreign public official to include
candidates for office
- clarified that the offence is about ‘improperly influencing’ a
foreign public official (instead of the current language which refers to a
benefit being ‘not legitimately due’)
-
removed the requirement for a bribe to be provided, promised or
offered so as to influence the foreign public official in the exercise of his
or her official duties
- expanded the offence to also apply where a personal (as opposed
to business) advantage is sought
- clarified that the advantage sought may be for someone other than
the person providing, promising or offering a bribe and
- clarified that the accused does not need to have specific
business or a specific advantage in mind.[110]
Proposed deferred prosecution
agreement scheme
The Crimes Legislation Amendment (Combatting Corporate
Crime) Bill 2017 would also have introduced a deferred prosecution agreement
(DPA) scheme in Australia for serious corporate crime. DPAs and non-prosecution
agreements (NPAs) have been used in the US for some time, and the UK’s DPA
scheme commenced in 2014.[111]
While they are used for a range of crimes, DPAs and NPAs have become a key
means of enforcing the US Foreign Corrupt Practices Act (FCPA), so are
of particular interest in the context of foreign bribery.[112]
Under a DPA, prosecution for an offence is deferred if a
defendant agrees to comply with specified conditions:
A DPA is a voluntary, negotiated settlement between a
prosecutor and defendant. Under a DPA scheme, where a company has engaged in a
serious corporate crime and the crime has either been self-reported by the
company or identified by investigators, prosecutors would have the option to
invite the company to negotiate an agreement to allow it to avoid a conviction
(ie, defer the prosecution). The terms of a DPA typically require the company
to comply with conditions, cooperate with any investigation, and pay a
financial penalty. A breach of the terms would result in the prosecution
resuming with the possibility of additional penalties. This decision to enter
into DPA negotiation is at the discretion of the prosecuting agency.[113]
The Government released an initial discussion paper in
March 2016, and a further consultation paper on a proposed model in
March 2017, informed by earlier submissions and discussions with federal
agencies.[114]
The model proposed in the Bill would have allowed DPAs to be
used only for legal persons (not individuals) and for specific Commonwealth
offences considered to be serious corporate crimes. DPAs would have been
negotiated by prosecutors in accordance with publicly available guidelines, and
required approval from a former judicial officer appointed as an approving
officer. They would have been published in full unless the CDPP considered it
inappropriate to do so in the interests of justice (in which case a DPA may be
either not published, or published with some details removed).[115]
Senate Standing Committee on
Economics inquiry
On 24 June 2015, the Senate referred an inquiry
into foreign bribery to the Economics References Committee. The inquiry, which
lapsed at the dissolution of Parliament in May 2016, was reinstated in
October 2016 and the Committee reported on 28 March 2018.[116]
The Committee made 22 recommendations. Seven recommendations would be
implemented by the foreign bribery amendments in the Crimes Legislation
Amendment (Combatting Corporate Crime) Bill 2017, or concerned the development
of guidance related to the ‘failure to prevent’ offence.[117]
Four related to the introduction of a DPA scheme (which that Bill would
establish) and the development of an accompanying Code of Practice.[118]
Two reiterated recommendations of the OECD Working Group’s Phase 4 report
(relating to debarment and information on voluntary reporting), and another was
that the Government prioritise the consideration and implementation of the
Phase 4 recommendations.[119]
The remaining recommendations were that:
- the AFP’s annual reports include certain information about the
FAC Centre, including the number of referrals received and the resources
allocated to the Centre
- consideration be given to developing a mechanism to make
contingency funding available to relevant agencies for large and complex
foreign bribery investigations
-
the Government have regard to how any changes coming out of a
review of ASIC’s enforcement regime could help improve enforcement of penalties
for breaches relating to foreign bribery[120]
- outstanding recommendations from the Parliamentary Joint
Committee on Corporations and Financial Services’ 2017 report on whistleblower
protections be implemented expeditiously, and that the Expert Advisory Panel on
Whistleblower Protections be asked to consider whether the Australian framework
provides adequate protections for people making disclosures relating to foreign
bribery[121]
- the facilitation payment defence be abolished over a transition
period
- ASIC maintains a central register on beneficial ownership that
requires companies, trusts and other corporate structures to disclose relevant
information and[122]
- the Government provides practical guidance to companies and
increases awareness of the high-risk sectors and regions in which Australian
businesses commonly operate.
The Government had not responded to the Committee’s report
as at the date of publication of this paper.
Conclusion
Australia moved relatively quickly to ratify the Convention
and implement it domestically through legislation, but its enforcement of the
Convention was low for many years, with the first prosecutions not commenced
until 2011. Since then, several convictions have been obtained and Australia
has made a concerted effort to strengthen its response to foreign bribery,
including through legislative amendments and a greater focus on and resourcing
of investigations. Foreign bribery investigations can be lengthy, complex and
resource-intensive, so it will take time and sustained effort and resources for
the benefits of recent measures to be fully realised. The recommendations of
the Phase 4 report and the recent Senate inquiry provide a useful starting
point for the consideration of measures to further improve Australia’s compliance
with the Convention and its broader response to foreign bribery.
[1].
Organisation for Economic Co-operation and Development (OECD), ‘Country
reports on the implementation of the OECD Anti-Bribery Convention’, OECD
website.
[2].
UNCAC requires parties to implement domestic laws creating offences for a
number of specific acts of corruption. UNCAC also encourages parties to pursue
methods of prevention, international cooperation and asset recovery on
corruption. United
Nations Convention against Corruption done at New York on
31 October 2003 [2006] ATS 2 (entered into force for Australia
6 January 2006).
[3].
OECD, Fighting
the crime of foreign bribery: the Anti-Bribery Convention and the OECD Working
Group on Bribery, OECD, 2017.
[4].
Convention
on Combating Bribery of Foreign Officials in International Business
Transactions (Anti-Bribery Convention) done at Paris on 17 December 1997 [1999]
ATS 21 (entered into force for Australia 17 December 1999), art. 1(1).
[5].
‘Commentaries on the Convention on Combating Bribery of Foreign Officials
in International Business Transactions’, adopted by the Negotiating Conference
on 21 November 1997, in OECD, OECD
Convention on Combating Bribery of Foreign Public Officials in International
Business Transactions and related documents, OECD, 2011.
[6].
Anti-Bribery Convention, art. 1(2).
[7].
Ibid., arts. 2 and 3(2).
[8].
Ibid., art. 3(1). Parties’ domestic laws may restrict the availability of
extradition and mutual legal assistance to offences above a certain penalty
threshold. For example, under section 5 of the Extradition Act
1988 (Cth) extradition may only be granted for offences for which the
maximum penalty is death or at least 12 months imprisonment or other
deprivation of liberty. Therefore, to meet its obligations under the
Convention, Australia’s foreign bribery offence must have a maximum penalty of
at least 12 months deprivation of liberty.
[9].
Ibid., art. 4.
[10].
Ibid., arts. 3(3), 8, 9 and 10.
[11].
OECD, Fighting bribery
in international business deals, Policy Brief, OECD,
September 2008, p. 3.
[12].
OECD, Revised
Recommendation of the Council on Combating Bribery in International Business
Transactions adopted 3 May 1997.
[13].
OECD, Recommendation
of the Council on Bribery and Officially Supported Export Credits,
adopted 14 December 2006; OECD, Recommendation
of the Council on Tax Measures for Further Combating Bribery of Foreign Public
Officials in International Business Transactions, adopted
25 May 2009; OECD, Recommendation of
the Council for Further Combating Bribery of Foreign Public Officials in
International Business Transactions, adopted 26 November 2009
(with amendments adopted 18 February 2010); OECD, Recommendation
of the Council for Development Co-operation Actors on Managing the Risk of
Corruption, adopted 16 November 2016. The last of these was
jointly developed by the Development Assistance Committee and the Working Group
on Bribery in International Business Transactions.
[14].
OECD, Recommendation of the Council for Further Combating Bribery of Foreign
Public Officials in International Business Transactions, op. cit.
[15].
Anti-Bribery Convention, art. 12.
[16].
OECD, ‘OECD
Working Group on Bribery in International Business Transactions’, ‘Country
monitoring of the OECD Anti-Bribery Convention’ and ‘Country
monitoring principles for the OECD Anti-Bribery Convention’, OECD website.
[17].
OECD, ‘Country monitoring of the OECD Anti-Bribery Convention’,
op. cit.; OECD, ‘Phase
4 country monitoring of the OECD Anti-Bribery Convention’, OECD website.
[18].
OECD Working Group on Bribery in International Business Transactions (OECD
Working Group), Monitoring
schedule December 2016–June 2024, OECD, 2016; OECD Working Group,
Australia
takes major steps to combat foreign bribery, but OECD wants to see more
enforcement, media release, 19 December 2017.
[19].
Transparency International (TI), ‘Research’, TI website.
[20].
TI, ‘Exporting
corruption’, TI website.
[21].
F Heimann, A Földes and S Coles, Exporting
corruption: progress report 2015: assessing enforcement of the OECD Convention
on Combatting Foreign Bribery, TI, 2015, pp. 15–19. The national
experts are generally members of TI, but also include lawyers, academics and
members of anti-corruption NGOs.
[22].
Ibid., p. 3. For the calculations used to take account of the scale of
a country’s exports, see pp. 15–17.
[23].
G Dell and A McDevitt, Exporting
corruption: progress report 2018: assessing enforcement of the OECD
Anti-Bribery Convention, TI, 2018, pp. 7–8 (see further
pp. 15, 17, 19–20, 22).
[24].
This section outlines some of the components of Australia’s foreign bribery
framework, with a focus on key obligations under the Convention and measures
adopted specifically to comply with the Convention and associated
Recommendations. The Convention and associated Recommendations provide a
comprehensive framework for combating foreign bribery, and it is not possible
to provide a thorough inventory of all the measures Australia has in place that
are relevant to meeting those obligations in this paper. For a more detailed (though
somewhat dated) summary, see OECD Working Group, Phase
3 report on implementing the OECD Anti-Bribery Convention in Australia,
OECD, October 2012, pp. 9–18, 32–36, 38–40, 44–45.
[25].
Criminal
Code Amendment (Bribery of Foreign Officials) Act 1999.
[26].
Criminal Code
Act 1995 (Criminal Code), Division 70.
[27].
The penalty was increased from up to ten years imprisonment and/or a fine of
up to 6,000 penalty units for an individual or a fine of up to 30,000 penalty
units for a corporation by the Crimes Legislation
Amendment (Serious and Organised Crime) Act (No. 2) 2010. The value of
a penalty unit is set by section 4AA of the Crimes Act 1914.
[28].
Criminal Code, s. 70.5.
[29].
OECD Working Group, Australia:
review of implementation of the Convention and 1997 Recommendation,
OECD, 1999, p. 23; OECD Working Group, Australia:
Phase 2 report on the application of the Convention on Combating Bribery of
Foreign Officials in International Business Transactions and the 1997
Recommendation on Combating Bribery in International Business Transactions,
OECD, 2006, pp. 44–45; Explanatory
Memorandum, International Trade Integrity Bill 2007, pp. 1–2.
[30]. Criminal
Code, s. 70.3.
[31].
This is not a comprehensive list. See further OECD Working Group, Phase 3
report on implementing the OECD Anti-Bribery Convention in Australia, op. cit,
pp. 9–18, 32–36, 38–40, 44–45. Some of the obligations under the
Convention are implemented without the need for legislation, such as
Articles 11 and 12.
[32].
For a summary of responsibilities by department/agency, see Australian
Government (listed as Attorney-General’s Department), Submission
to Senate Economics References Committee, Inquiry into foreign bribery,
September 2015,
pp. 31–34.
[33].
AFP and ASIC formalised this division of investigative responsibility in a
memorandum of understanding in October 2013.
[34].
Australian Federal Police (AFP), The
case categorisation and prioritisation model: guidance for AFP clients,
AFP, 1 July 2016.
[35].
Ibid.
[36].
AFP, Annual
report 2012–13, AFP, 2013, p. 67.
[37].
M Keenan (Minister for Justice), AFP-hosted
fraud and anti-corruption crime, media release, 31 July 2014;
AFP, Fraud
and Anti-Corruption Centre, fact sheet, AFP, n.d.
[38].
G Brandis, ‘Answer to Question on notice: investigation of foreign
bribery offences’, [Questioner: P Whish-Wilson], Question 571,
Senate, notice given 21 September 2017; OECD Working Group, Implementing
the OECD Anti-Bribery Convention: Phase 4 report: Australia, OECD, n.d,
pp. 38–40.
[39].
Commonwealth Director of Public Prosecutions (CDPP), Prosecution
policy of the Commonwealth: guidelines for the making of decisions in the
prosecution process, CDPP, n.d.
[40].
Australian Government, Submission, Inquiry into foreign bribery,
op. cit., p. 12.
[41].
Ibid.
[42].
OECD Working Group, Australia:
follow up to the Phase 3 report and recommendations, OECD,
April 2015, pp. 22–27.
[43].
Ibid.
[44].
AGD, ‘International
Crime Cooperation Central Authority’, AGD website; OECD Working Group, Phase
3 report on implementing the OECD Anti-Bribery Convention in Australia,
op. cit., pp. 38–40.
[45].
AFP, ‘Our work
overseas’, AFP website; OECD Working Group, Phase 3 report on
implementing the OECD Anti-Bribery Convention in Australia, op. cit.,
p. 38.
[46]. AFP, Foreign
bribery cases, media release, 3 October 2013.
[47]. Australian
Government, Submission, Inquiry into foreign bribery, op. cit.,
p. 10.
[48].
B Steinman, ‘It’s
time to meet the International Foreign Bribery Taskforce’, The FCPA Blog,
7 December 2016.
[49].
AGD, Annual
report 2014–15, AGD, 2015, p. 33; Australian Government,
Submission, Inquiry into foreign bribery, op. cit., p. 31.
[50].
OECD Working Group, Australia: Phase 2 report, op. cit.,
p. 4.
[51].
OECD Working Group, Phase 3 report on implementing the OECD Anti-Bribery
Convention in Australia, op. cit., pp. 8–9, 60–63.
[52].
Senate Economics References Committee, Official
committee Hansard, 31 October 2017, p. 17.
[53].
Ibid. In an email of 9 May 2017, the AFP advised that as at
May 2017, 15 matters pre-dating the FAC remained current: two matters
before the courts, three that had been referred to the CDPP and ten ongoing
investigations.
[54].
Ibid., p. 26.
[55].
AFP, Foreign
bribery charges laid in Australia, media release,
1 July 2011.
[56].
AFP, Further
charges laid in foreign bribery investigation, media release,
10 August 2011; N McKenzie and R Baker, ‘Printing
man on bribery charges’, The Age, 13 September 2011,
p. 3; AFP, Further
changes laid in foreign bribery investigation, media release,
14 March 2013.
[57].
Ibid.; AFP, Foreign bribery charges laid in Australia, op. cit.
[58].
CDPP, Securency
and Note Printing Australia foreign bribery prosecutions finalised,
CDPP, November 2018.
[59].
Reserve Bank of Australia (RBA), Guilty
pleas made by Note Printing Australia and Securency in the Supreme Court of
Victoria, media release, 28 November 2018.
[60].
CDPP, Securency and Note Printing Australia foreign bribery prosecutions
finalised, op. cit.
[61].
Ibid.; RBA, ‘Chronology:
events related to charges against Note Printing Australia and Securency’,
RBA website.
[62].
CDPP, Securency and Note Printing Australia foreign bribery prosecutions
finalised, op. cit.
[63].
Ibid; RBA, Guilty pleas made by Note Printing Australia and Securency,
op. cit (quote taken from this source).
[64].
AFP, Foreign bribery charges laid in Australia, op. cit.
[65].
AFP, Man
arrested for foreign bribery, media release,
20 February 2015.
[66].
N McKenzie, R Baker and P Bibby, ‘Terrorist
link to bribery charges’, The Sydney Morning Herald,
21 February 2015, p. 4; S Dalzell, ‘Mamdouh
Elomar, father of IS fighter, to stand trial over alleged bribe to Iraqi
official’ ABC News (online), 30 June 2016; J Sturmer,
‘Mamdouh
Elomar, Ibrahim Elomar and John Jousif plead guilty to bribing foreign minister’,
ABC News (online), 10 July 2017.
[67].
R v Jousif; R v I Elomar; R v M Elomar [2017]
NSWSC 1299 (27 September 2017).
[68].
Ibid.
[69].
OECD Working Group, Australia: review of implementation, 1999,
op. cit., pp. 23–24.
[70]. The
lawful conduct defence was amended in 2007 (see page 8); the penalty was
increased in 2010 (see page 7).
[71].
OECD Working Group, Australia: Phase 2 report, op. cit.,
pp. 4, 11–13.
[72].
Ibid., pp. 57–59.
[73].
OECD Working Group, Australia:
Phase 2 follow up report on the implementation of phase 2 recommendations,
OECD, 2008, p. 5; OECD Working Group, Phase 3 report on implementing the
OECD Anti-Bribery Convention in Australia, op. cit., p. 48.
[74]. OECD
Working Group, Phase 3 report on implementing the OECD Anti-Bribery
Convention in Australia, op. cit., pp. 54–56.
[75].
Ibid., pp. 5, 10–11, 14–15, 37.
[76].
Ibid., p. 5; OECD, OECD
seriously concerned by lack of foreign bribery convictions, but encouraged by
recent efforts by the Australian Federal Police, media release,
25 October 2012.
[77].
OECD Working Group, Phase 3 report on implementing the OECD Anti-Bribery
Convention in Australia, op. cit., p. 49 (Recommendation 1).
[78].
Ibid., p. 50 (Recommendation 8(a); a multi-part recommendation).
[79].
M Beck and B Butler, ‘Police
reopen bribery cases’, The Age, 13 January 2013,
p. 1.
[80].
Ibid., pp. 50–52.
[81].
OECD Working Group, Australia: follow up to the Phase 3 report and
recommendations, op. cit., p. 4; OECD Working Group, Implementing
the OECD Anti-Bribery Convention: Phase 4 report: Australia, OECD,
n.d., pp. 21, 23–4, 33, 35, 37, 42, 45–7, 49–51, 56.
[82].
OECD Working Group, Implementing the OECD Anti-Bribery Convention: Phase
4 report: Australia, op. cit. Of the remaining four recommendations,
three were converted to follow-up issues; the report did not state whether the
Working Group considered recommendation 15d to be fully implemented (it
was assessed as partially implemented in the 2015 follow-up report).
Recommendation 8a is counted here as partially implemented overall; the
Working Group assessed four of its five parts to have been fully implemented
and one as partially implemented.
[83]. Ibid., pp. 46–49.
[84]. Ibid.,
pp. 17–21, 49–51.
[85].
Ibid., p. 57. On the legislative amendments, see further the ‘Recent
developments’ section of this paper.
[86].
Ibid. On the Fintel Alliance, see further the ‘Recent developments’ section
of this paper.
[87].
Ibid., p. 56.
[88].
Ibid., pp. 57–59.
[89].
Ibid., p. 56.
[90].
Dell and McDevitt, Exporting corruption: progress report 2018,
op. cit., p. 4.
[91].
Ibid.; F Heimann and G Dell, Exporting
corruption? Enforcement of the OECD Anti-Bribery Convention progress report
2012 (Progress report 2012), TI, 2012, p. 6;
F Heimann et al., Exporting
corruption: progress report 2013: assessing enforcement of the OECD
Convention on Combating Foreign Bribery, TI, 2013, p. 4;
F Heimann, A Foldes and G Bathory, Exporting
corruption: progress report 2014: assessing enforcement of the OECD
Convention on Combating Foreign Bribery, TI, 2014, p. 2; Heimann
et al., Exporting corruption: progress report 2015, op. cit.,
p. 7.
[92].
F Heimann and G Dell, Progress
report 2009: enforcement of the OECD Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions, TI, 2009,
p. 8; F Heimann and G Dell, Progress
report 2010: enforcement of the OECD Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions, Transparency
International, TI, 2010, p. 8; F Heimann, G Dell and K McCarthy, Progress
report 2011: enforcement of the OECD Anti-Bribery Convention, TI, 2011,
p. 5.
[93].
Heimann and Dell, Progress report 2012, op. cit.,
pp. 6, 12.
[94].
Heimann et al., Exporting corruption: progress report 2013,
op. cit., pp. 13–14.
[95].
Ibid., pp. 14–16.
[96].
Heimann et al., Exporting corruption: progress report 2014,
op. cit., pp. 5, 9.
[97].
Heimann et al., Exporting corruption: progress report 2015,
op. cit., p. 10.
[98].
Dell and McDevitt, Exporting corruption: progress report 2018,
op. cit., pp. 26–27.
[99].
AFP, Fraud and Anti-Corruption Centre, op. cit.; OECD Working
Group, Implementing the OECD Anti-Bribery Convention: Phase 4 report:
Australia, op. cit., pp. 37–39. The Foreign Bribery Panel of
Experts was established in the AFP in April 2012 and comprises senior
investigators who have had responsibility for at least one significant foreign
bribery investigation and experience with large and complex transnational
matters. See further: OECD Working Group, Australia: follow up to the Phase
3 report and recommendations, op. cit., pp. 6–7, 39; OECD Working
Group, Implementing the OECD Anti-Bribery Convention: Phase 4 report:
Australia, op. cit., pp. 38–9.
[100].
Brandis, ‘Answer to Question on notice: investigation of foreign bribery
offences’, op. cit.
[101].
M Turnbull (Prime Minister), G Brandis (Attorney-General) and
M Keenan (Minister for Justice), Boosting
efforts to tackle foreign bribery, media release,
23 April 2016; Australian Government, Budget
measures: budget paper no. 2: 2016–17, p. 66.
[102].
AFP and ASIC, Memorandum
of understanding between the Australian Federal Police and Australian
Securities and Investments Commission on collaborative working arrangements,
October 2013.
[103].
C Barker, J Mills and M Neilsen, Crimes
Legislation Amendment (Powers, Offences and Other Measures) Bill 2015,
Bills digest, 1, 2015–16, Parliamentary Library, Canberra,
5 August 2015, p. 13.
[104].
Crimes
Legislation Amendment (Powers, Offences and Other Measures) Act 2015,
Schedule 2.
[105].
OECD Working Group, Phase 3 report on implementing the OECD Anti-Bribery
Convention in Australia, op. cit., pp. 11–12, 49 (Recommendation 2(b)).
[106].
C Barker and J Mills, Crimes
Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015,
Bills digest, 75, 2015–16, Parliamentary Library, Canberra,
2 February 2016, pp. 7–10.
[107].
Criminal Code, sections 490.1 and 490.2 (inserted by
Schedule 2 to the Crimes Legislation
Amendment (Proceeds of Crime and Other Measures) Act 2016).
[108].
Parliament of Australia, ‘Crimes
Legislation Amendment (Combatting Corporate Crime) Bill 2017 homepage’,
Australian Parliament website; AGD, ‘Proposed
amendments to the foreign bribery offence in the Criminal Code Act 1995’,
AGD website; AGD, Combatting
bribery of foreign public officials: proposed amendments to the foreign bribery
offence in the Criminal Code Act 1995, AGD, April 2017.
[109].
Bribery
Act 2010 (UK), section 7.
[110].
For further information, see C Barker and M Biddington, Crimes
Legislation Amendment (Combatting Corporate Crime) Bill 2017, Bills
digest, 105, 2017–18, Parliamentary Library, Canberra, 8 May 2018; Senate
Standing Committee on Legal and Constitutional Affairs, Crimes
Legislation Amendment (Combatting Corporate Crime) Bill 2017, The
Senate, Canberra, 20 April 2018.
[111].
E Radmore and SL Hill Jr, ‘Deferred
Prosecution Agreements: the US experience and the UK potential’, Lexology,
14 July 2014. The US scheme operates under separate guidelines that
apply to the Department of Justice and the Securities Exchange Commission; the
UK scheme is legislated: ‘9-28.000
- Principles of federal prosecution of business organizations’ in Offices
of the United States Attorneys, U.S. Attorneys’ Manual, Department of
Justice, 1997; Office of Chief Counsel, Enforcement
manual, Securities Exchange Commission, 28 October 2016,
pp. 101–104; Crime
and Courts Act 2013 (UK), Schedule 17.
[112].
OECD Working Group, Phase
3 report on implementing the OECD Anti-Bribery Convention in the United States,
OECD, October 2010, pp. 32–38; OECD Working Group, 2016
data on enforcement of the Anti-Bribery Convention, OECD,
November 2017, Table 1A.
[113].
AGD, Improving
enforcement options for serious corporate crime: consideration of a deferred
prosecution agreements scheme in Australia: public consultation paper,
AGD, March 2016, p. 9.
[114].
Ibid.; AGD, Improving enforcement
options for serious corporate crime: a proposed model for a deferred
prosecution agreement scheme in Australia: public consultation paper,
AGD, March 2017.
[115].
For further information, see Barker and Biddington, Crimes Legislation
Amendment (Combatting Corporate Crime) Bill 2017, op. cit.; Senate
Standing Committee on Legal and Constitutional Affairs, Crimes Legislation
Amendment (Combatting Corporate Crime) Bill 2017, op. cit.
[116].
Inquiry
homepage, Senate Economics References Committee, ‘Foreign bribery’; Senate
Economics References Committee, Foreign
bribery, The Senate, Canberra, 28 March 2018.
[117].
The Bill would implement recommendations 5, 6, 7 and 10; recommendations
8, 9 and 17 related to the content of, and process for developing, guidelines
for corporations on steps that they should take to implement adequate
procedures to prevent foreign bribery: Barker and Biddington, Crimes
Legislation Amendment (Combatting Corporate Crime) Bill 2017, op. cit.,
pp. 8–9.
[118].
Recommendations 11, 12, 13 and 14.
[119].
Recommendations 1, 20 and 22.
[120].
The ASIC Enforcement Review Taskforce reported to Government in
December 2017, and the Government released a response in April 2018:
ASIC Enforcement Review Taskforce, Report,
Australian Government, December 2017; Australian Government, Response
to the ASIC Enforcement Review Taskforce Report, April 2018.
[121].
See: Parliamentary Joint Committee on Corporations and Financial Services, Whistleblower
protections, Commonwealth of Australia, 13 September 2017; K
O’Dwyer (Minister for Revenue and Financial Services), Expert
Advisory Panel on whistleblower protections, media release,
28 September 2017.
[122].
The Government committed to consult on options for a beneficial ownership
register as part of its first Open Government National Action Plan, and
conducted consultations in 2017: Australian Government, Australia’s
first Open Government national action plan 2016–18, Commonwealth of Australia,
Canberra, 2016, pp. 15–17; Treasury, ‘Increasing
transparency of the beneficial ownership of companies’, Treasury website.
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