In brief

  • The United Nations’ review of Australia’s compliance with the United Nations Convention against Corruption was released on 18 June 2012.
  • Notably, the review calls upon Australia to review its policies and approach on ‘facilitation payments’, and to encourage companies to prohibit or discourage the use of such payments.

The review by the United Nations (UN) on Australia’s compliance with Chapters III and IV of the United Nations Convention against Corruption (the Convention), casts further doubt on the future of the facilitation payments defence in Australia.

Nicola Roxon, the Commonwealth Attorney-General, announced the release of the UN’s review on 18 June 2012, stating that ‘these findings are a testament to how serious the Australian Government is about combating corruption’. Australia signed the Convention in December 2003 and ratified it in December 2005.

While the full report is not yet available, the executive summary1 certainly highlights a number of successes and good practices in Australia.

However, it also refers to the inclusion of the ‘facilitation payment’ defence in Australia’s anti-bribery legislation, notwithstanding that the Convention itself does not include such an exception.

The UN concludes that Australia should continue reviewing its policies and approach on facilitation payments in order to effectively combat the phenomenon, and encouraging companies to prohibit or discourage the use of facilitation payments.

The Australian Government conducted a consultation process on the possible removal of the facilitation payments defence between November and December 2011. The results of that consultation have not yet been released, although it is understood that the government received an approximately equal split of submissions in favour of, and against, the removal of the defence. The UN’s comments on this issue however, support the view previously expressed2 that businesses should be planning for the removal of the defence.

The UN also recommends, as part of its review, the adoption and implementation of legislation to expand protection for ‘whistleblowers’, as well as ongoing review of Australia’s policies and legal mechanisms to ensure the widest measure of international cooperation and assistance in criminal matters.

The Attorney General’s office has indicated that feedback from the UN’s review will be incorporated in the development of Australia’s National Anti-Corruption Plan3, which is expected to be released in the second half of 2012.