Annexure A to the CDPP Prosecution Policy states that the Commonwealth Director of Public Prosecutions has issued the following statement:
When deciding whether to prosecute a person for bribing a foreign public official under Division 70 of the Criminal Code, the prosecutor must not be influenced by:
- considerations of national; economic interest;
- the potential effect upon relations with another State; or
- the identity of the natural or legal persons involved.
This statement reflected the terms of Article 5 of the OECD Convention. There is however, no law in Australia giving effect to this “obligation”.
Australian courts all have statutes or rules that permit the suppression or non-publication of certain facts, information or evidence or the whole or part of a proceeding before the Courts.
In June 2014, the Australian Government through Department of Foreign Affairs & Trade (DFAT) secured suppression orders seeking to protect the identity of various Asian political figures from being named as alleged participants in the Securency bribery scandal in circumstances where those individuals were not charged with any offence. The DFAT notice informing the Court of its application for a suppression order stated that its purpose was “to prevent damage to Australia’s international relations that may be caused by the publication of material that may damage the reputation of specified individuals who are not the subject of charges in these proceedings.” Quite why Australia should be concerned to protect the reputation of Asian-based politicians who can well look after their own reputation (and often do by suing for defamation and using national sedition laws to silence critics) is not entirely clear from the judgment (as the key evidence is redacted).
In June 2015, the Court revisited its initial orders on the application of the Australian media. After hearing debate, the Court’s judgment discharged the initial suppression orders. While the Court was critical of Wikileaks for publishing the June 2014 orders and the media for inaccurate reporting of the effect of those orders, the Court was not persuaded to maintain the suppression orders. The Court characterised DFAT’s evidence as “unsourced or second-hand hearsay” and was drafted “at an unsatisfactory high level of vagueness or generality.” The Court made it clear that the strong public interest in the public knowing about the Securency case and what did or did not happen had to be balanced with countervailing public interest considerations concerning protecting the administration of justice and Australia’s national security – matters that DFAT bore the onus of establishing, which it failed to do.
Article 5 of the OECD Convention is clear – economic interests or the identity of persons is and should not be a relevant consideration.
When individuals may be named in any criminal proceeding, it is for the Court and those persons to deal with it – it should not be the role of Government to come in and seek to protect friendly politicians in the name of “national security” (whatever that means on any particular day). It is important to remember that to be truly effective, foreign bribery offences need to target not only those responsible for paying the bribe but also those who either directly or indirectly – whether at first instance or second instance or even more remotely – benefited from the bribe. Seeking to suppress the name of some individual who allegedly ultimately received some benefit from the illegal conduct does not assist foreign Sovereign States in preventing bribery of their public officials The use of suppression orders in circumstances such as these should only be granted in the most exceptional of cases and rarely if ever in foreign bribery cases (given the very high level of public interest in requiring such cases to be public and transparent) so justice is not only done but is seen to be done in the eyes of the public and society generally.