AUSTRALIAN FEDERAL POLICE ARRESTS FOR FOREIGN BRIBERY: ONLY THE SECOND EVER AUSTRALIAN FOREIGN BRIBERY PROSECUTION

The Australian Federal Police (AFP) have arrested 2 directors of the construction company Lifese Pty Ltd for allegedly bribing Iraqi officials to secure a multimillion-dollar construction contract. The AFP will allege almost AU $1m was transferred overseas for the payment of foreign bribes.

The company’s chairman, a retired Supreme Court Judge and former Attorney-General for the State of New South Wales, John Dowd QC, resigned. No allegations have been made against Dowd QC. However, his resignation is a stark reminder to company directors and officeholders that their obligations to maintain appropriate standards of corporate governance can be especially tied to good foreign anti-bribery policies and practices if they operate in jurisdictions with a record of problems with foreign bribery, such as Iraq.

The prosecutions also signal Australia’s growing attention to its foreign bribery laws. While this case is only the second to proceed to prosecution, according to the AFP Commissioner, Andrew Colvin, the AFP has 14 active foreign bribery investigations on foot, 9 known publicly.

ICAC’S DEFINITION OF CORRUPT CONDUCT CHALLENGED

The New South Wales Independent Commission Against Corruption (ICAC) appeared in the High Court of Australia to contest the NSW Court of Appeal’s finding that ICAC did not have jurisdiction to investigate conduct which the Court of Appeal said could not “adversely affect” the exercise of a public official’s function where there was no suggestion the conduct would have led the official to act “otherwise than honestly and impartially”.

ICAC says the decision will affect its ability to investigate conduct "which could have negatively affected the exercise of public functions" but did not involve dishonesty or impartiality by officials. This has broad implications for a number of current ICAC investigations or potential investigations, and opens a new line of argument to shut down an ICAC investigation before it can hold public hearings.

Counsel for ICAC also made a submission to the High Court of Australia that the Independent Commission Against Corruption Act 1988 (NSW) (ICAC Act) anticipates that ICAC may infringe the fundamental rights and freedoms of the people it ­investigates. ICAC accepted the principle that legislation should be interpreted in a way that avoids inadvertent and collateral abrogation or curtailment of fundamental rights, freedoms and immunities. ICAC argued, however, that because the ICAC Act otherwise indicates a parliamentary intention to curtail fundamental rights, such as the abrogation of the privilege against self-incrimination, there is no need to give a strict interpretation to those parts of the ICAC Act that allow ICAC to conduct investigations.