The Trans Pacific Partnership (TPP) has generated intense debate, enhanced by the reluctance of the Australian Government to clearly disclose to the electorate the benefits of the agreement, assuming there are indeed benefits over the longer term. Now the form of the agreement has been finally published by the US Government with the banner headline “Made in America - leveling the playing field for American workers & American businesses”.
Chapter 26 of the TPP focuses on Transparency and Anti-Corruption. There are a number of key messages from the TPP on Australia’s anti-corruption initiatives:
- a commitment to eliminate bribery and corruption in international trade and investment (Article 26.2.1);
- to define “foreign public officials” and “public officials” in potentially a narrower manner than the definitions in the Criminal Code or indeed the FCPA (Article 26.1);
- to criminalise the conduct of persons who intentionally offer or give an “undue advantage” to a public official (Article 26.7.1) which is in language different to the foreign bribery offence in section 70.2 of the Criminal Code;
- to ensure penalties are “effective, proportionate and dissuasive” of offending conduct (Article 26.7.3);
- to enact robust offences maintaining the integrity of books and records and financial statements and the use of false documents (Article 26.7.5);
- to protect whistleblowers “against any unjustified treatment” where a person, in good faith and on reasonable grounds, reports conduct to a relevant authority (Article 26.7.6);
- the promotion of integrity, honesty and responsibility in public officials (Article 26.8.1); and
- involving non-government and non-public sector entities and individuals in the fight against corruption (Article 26.10.1).
While Australia ticks many of these criteria, there is still work to be done in protecting whistleblowers who are, in general, treated with less than due respect by their employers (public or private sector) when they blow the whistle on improper or illegal conduct. While there is an obligation to enforce anti-corruption laws, the TPP is silent on enforcement obligations, resourcing issues and how sovereign countries will allocate public resources to the task. If the US Government considers a fellow signatory of the TPP is not enforcing its contractual obligations and US business interests suffer losses, the US Government may seek to enforce its rights under the TPP dispute mechanism in Article 28 and sue the other government. We have to wait and see how all this develops.