Spotlight: anti-bribery enforcement in Australia

All questions

Enforcement: domestic bribery

Each Australian state has a form of independent anti-corruption commission. The remit of these commissions is to investigate corruption as it concerns state or local government officials and public assets or money relevant to the state. There is, however, no Commonwealth anti-corruption commission. Rather, the Commonwealth has a patchwork of regulatory or supervisory agencies. In the first instance, the relevant entity conducts its own investigation. If the incident is more serious, the AFP is called in pursuant to a referral and, if charges are brought, they are prosecuted by the CDPP.

As an example of state-based anti-corruption work, the NSW ICAC is an independent anti-corruption agency that was established by the NSW government in 1988.²⁴ The ICAC's jurisdiction extends to all NSW public sector agencies (except for the NSW Police Force) and to those performing public official functions. While the ICAC investigates public sector corruption, it has no power to prosecute. That power lies with the NSW DPP for state offences and the CDPP for Commonwealth offences. While the ICAC might make findings of corruption or other criminality, its findings are based on evidence secured under compulsive powers and such evidence is inadmissible against the witness giving the evidence in any subsequent civil or criminal proceeding. Thus, the DPP has to establish its own admissible evidence to proceed with any prosecution.

Enforcement: foreign bribery and associated offences

Australia has still had very few criminal prosecutions for foreign bribery since 1999. The first was commenced in 2011 in connection with the two subsidiaries of Australia's central bank, the Reserve Bank of Australia (RBA).

In July 2011, subsidiaries of the RBA, Securency International Pty Ltd (Securency),⁷³ a provider of polymer banknotes, and Note Printing Australia Pty Ltd (NPA),⁷⁴ a printer of polymer banknotes, and several senior executives paid or conspired to have paid bribes through local intermediaries to foreign public officials in Indonesia, Malaysia, Vietnam and Nepal to secure valuable polymer banknote printing contracts. The AFP charged the companies and various individuals with foreign bribery, conspiracy and false accounting offences as part of the Securency investigation.⁷⁵ The investigation and prosecutions concluded in December 2018 with a number of guilty pleas and convictions recorded, although no individual served a term of imprisonment (see Section IX.iv).

The second case commenced in February 2015 against three principals of a construction company, Lifese Pty Ltd, which specialised in construction projects in the Middle East.

The charges were for the offence of conspiracy to bribe a foreign public official to win construction contracts in Iraq. The sum of A$1,035,000 was given to an intermediary to facilitate the award of lucrative construction contracts for the company, which was under considerable financial pressure with very little work.

In June 2017, the accused pleaded guilty and, on 27 September 2017, each of the accused was sentenced to four years' imprisonment (with parole after two years), with fines for two of the accused of A$250,000 each.⁷⁶

In sentencing, the court made it clear that the victim was the nation state (Iraq) whose public officials were to receive a private benefit.

The court also was strongly of the view that the sentence should include an element of denunciation and that bribery of an official 'can never be excused, much less justified, based on a business imperative'.

In December 2018, in CDPP v. Boillot, the Court said the following, which reflected the general enforcement views of Australian courts:

Although there is no evidence before the court as to the prevalence of foreign bribery offences, general deterrence and denunciation are usually very important sentencing considerations in all cases involving 'white collar' crime. Such offences are usually hard to detect. They have often been committed by persons who had been regarded as being of good character and reputation. Because such offenders generally have good prospects of rehabilitation, specific deterrence is often not a very relevant consideration. In such cases, courts generally place great weight on the need to deter others from engaging in similar conduct.⁷⁷