In September 2015, the Attorney General’s Department (AGD) has filed a multi-agency submission to the Senate Economics Committee’s review of Australia’s foreign bribery laws.
Highlights from AGD Submission
The following can be drawn from the AGD submission:
- Australia is committed to combatting corruption and foreign bribery yet the submission is silent on the financial resources to be dedicated to the task (perhaps naturally so leaving that to the Government as a political matter);
- Australia’s updates to the OECD Working Group on Bribery have been well received, so we need to wait until the next OECD review to independently assess how Australia is in fact tracking on the various benchmarks identified by the OECD over many years;
- the AFP hosted National Fraud & Anti-Corruption Centre is coordinating investigations and ASIC and the AFP are working together under an MOU in a manner that clearly implies that nothing else needs to be done, despite numerous other submissions calling for a closer look at how foreign bribery investigations and prosecutions are conducted;
- the Government has now proposed new, more substantial criminal false accounting offences (see above);
- the submission says nothing as to whether a self-reporting regime, such as the Deferred Prosecution Agreement scheme that exists in the United Kingdom, should be introduced into Australia and appears content to leave the present very unattractive system in place providing little real incentives to companies or individuals to report potential offences;
- the submission implicitly states that the Australian Government should not issue any Resources Guide or other guide to business, simply because “it is a matter for business” and “Australia does not have any case law in this area”, neither of which appear to be reasons of any great weight or merit; and
- on facilitation payments, the submission is silent on whether they should be banned, as almost all submissions called for.
Review of the AGD Submission
Overall, the AGD submission, while illuminating in certain respects in highlighting the inter-agency relationships (particularly as between the AFP and ASIC) is underwhelming on a number of levels. While the submission highlights the improved level of inter-agency cooperation, it fails to address anything of substance to the consistent calls for more clarity in the Government’s work in promoting foreign bribery awareness, it ignores calls for any resources guide for business, it fails to address the need to improve self-reporting by offering a better, more focused self-reporting process in the criminal law system (such as deferred prosecution agreements) and it is silent on facilitation payments. While the AGD may be reluctant to put forward ideas as policy, it fails to engage in any intellectual debate on these topics, preferring to remain silent. That is regrettable given the overwhelming call in the majority of submissions for action on these matters.