SENATE LAUNCHES INQUIRY INTO FOREIGN BRIBERY

On 24 June 2015, the Commonwealth Senate referred an inquiry into the measures governing the activities of Australian corporations, entities, organisations, individuals, government and related parties with respect to foreign bribery to the Senate Economics References Committee for inquiry and report by 1 July 2016. The terms of reference are broad and will consider, among other things:

  • the resourcing, effectiveness and structure of Commonwealth agencies and statutory bodies to investigate and prosecute cases of foreign bribery, including cooperation between the bodies;
  • the range of penalties available to the court, including debarment from government contracts and programs;
  • the range of offences, for example, false accounting and failing to create a corporate culture of compliance
  • measures to encourage self-reporting, including, civil resolutions, settlements, negotiations, plea bargains, enforceable undertakings and deferred prosecution agreements;
  • private sector whistle blower protection and other incentives to report foreign bribery;
  • the facilitation payment defence; and
  • foreign bribery not involving foreign public officials (ie, company to company or international sporting bodies).

Senator Sam Dastyari, who in March this year foreshadowed a motion to establish the Senate Inquiry into foreign corrupt practices, will chair the inquiry.  

HIGH COURT GRANTS LEAVE TO HEAR QUESTION REGARDING AGREED OUTCOMES IN CIVIL PENALTY PROCEEDINGS

The High Court has granted special leave to hear an appeal filed by the Commonwealth against a Full Federal Court decision handed down in May which has restricted the ability of the nation’s regulators to negotiate penalties (see [2015] HCATrans 149).

The decision of the Full Federal Court cast doubt on the ability of regulators, including the Australian Competition and Consumer Commission (ACCC) and the Australian Securities and Investments Commission (ASIC), to reach a resolution between parties by way of negotiated settlement. The Court held that in determining the amount of a penalty to impose in civil pecuniary cases, the Court should have no regard to the agreed penalty figure put forward by the parties, other than to the extent that the agreement demonstrates a degree of remorse or cooperation on the part of the respondent.  

A date for the appeal has not yet been set.