At a glance
In December 2017, the Australian Federal Police (AFP) and Commonwealth Director of Public Prosecutions (CDPP) jointly released Best Practice Guidelines providing corporations with practical information about self-reporting suspected foreign bribery (the Guidelines). The Guidelines include information on how the AFP and CDPP will deal with self-reports; the relevance of self-reports and other factors to CDPP decisions about whether to prosecute a self-reporting corporation; and procedures for dealing with early guilty pleas from corporations. They appear to be a response to a criticism raised in the 2015 Senate inquiry into foreign bribery about the absence of such assistance (see our report on that inquiry here), and have been issued ahead of pending legislation to expand Australia's foreign bribery laws, and to introduce a deferred prosecution agreement scheme (see our update on those legislative changes here).
Key aspects of the Guidelines
After summarising some of the reasons why a corporation might choose to self-report foreign bribery (or related offences) (including the scope to limit corporate criminal liability, minimising reputational damage, and maximising sentencing discounts), the Guidelines explain what occurs if a self-report is made:
- Without admissions: the Guidelines confirm that a self-report about conduct of the company or its officers or employees can be made without admitting criminal responsibility, a matter likely to be a key consideration for many companies in choosing whether to make a report
- Reports to agencies other than the AFP: the AFP and the CDPP may at their discretion choose to treat self-reports to another Australian agency about foreign bribery or related offences, as a report to the AFP, and apply the Guidelines to that report. Importantly, the Guidelines are silent on whether self-reports to foreign regulatory agencies will also receive this treatment
- AFP investigation: The AFP will independently investigate conduct the subject of a self-report, including assessing the quality of any internal investigation conducted by the company
- Full disclosure: The company will be expected to give the AFP full disclosure about the reported conduct. This includes making available all relevant documents (including internal investigation reports), and all potential witnesses. However in saying that, the Guidelines accept that a company's legal power to require employees or agents to cooperate may be limited; that individuals have the right not to incriminate themselves; and that nothing in the Guidelines affects the company's entitlement to claim legal professional privilege over privileged material
- Cooperation agreement: As part of the cooperation process, the company may be asked to enter into an "Investigation cooperation agreement" (ICA), which documents the AFP's expectations of the cooperation required, and will serve as the framework against which the quality and extent of the company's cooperation is assessed in any later sentencing proceedings
- Sharing self-reports with other agencies: While the AFP and CDPP will treat self-reports confidentially, they may be shared with other domestic and international law enforcement agencies. Where that happens, the AFP and CDPP will give the corporation notice and work with it to manage such on-disclosure, provided that doing so will not compromise other investigations
- Prosecution decisions: Self-reports (along with a number of other matters, such as the quality and timeliness of the report, the extent of cooperation provided, and a range of other points) will be a significant factor considered by the CDPP in deciding whether to prosecute the company, recognising that in some circumstances it may not be in the public interest to prosecute self-reporting organisations
The Guidelines also deal with procedures for an early guilty plea by a company if it is prosecuted. Significantly, they confirm that a company can engage with the AFP on a non-binding and without prejudice basis in exploring potential guilty plea proposals.
The Guidelines provide that they will be reviewed once a deferred prosecution agreement (DPA) scheme commences. That appears imminent, given that legislation for that purpose is likely to be passed in the first half of 2018. We expect that both the DPA scheme and the Guidelines will encourage greater self-reporting of foreign bribery offences by corporations, by providing greater certainty around the consequences of doing so.