The Australian government has released a public discussion paper on the possibility of introducing a scheme of Deferred Prosecution Agreements in Australia. The paper calls for submissions on whether such agreements should be introduced and if so, how the scheme should be structured.

This comes just weeks after the government introduced new false accounting offences to strengthen its anti-bribery framework and takes place in the context of two ongoing Senate inquiries into foreign bribery and penalties for white collar crime. Both are due to report in July this year.

What are Deferred Prosecution Agreements?

Deferred Prosecution Agreements (DPAs) are negotiated resolutions entered into between a prosecutor and a defendant which allow the defendant to “defer” a criminal prosecution by complying with its terms. These ordinarily include the payment of a financial penalty, compliance with recommendations and occasionally, the appointment of an independent monitor. The real benefit for defendants, if DPAs were to be introduced, is that where a DPA is successfully complied with no criminal conviction is recorded.

DPAs have been used effectively for years by the United States Department of Justice to resolve enforcement actions under the Foreign Corrupt Practices Act 1977 (US). They have also recently been introduced in the United Kingdom. Late last year, the UK Serious Fraud Office announced that it had entered into its first DPA with a bank in relation to an allegation of failure to prevent bribery under the Bribery Act 2010 (UK).

Key Questions

The discussion paper notes that the Australian Government is considering options to facilitate a more effective and efficient response to corporate crime through encouraging greater self-reporting by companies.

In addition to providing an overview of the United States and United Kingdom DPA schemes, it sets out 14 questions to which it seeks responses. Some of the key questions include:

  • whether a DPA scheme would be a useful tool for Commonwealth agencies;
  • which offences DPAs should be available for;
  • whether they should be limited to companies or available to individuals;
  • the extent to which courts should be involved in the Australian DPA scheme;
  • whether DPAs should be made public and the circumstances in which they should not be published;
  • the structure of DPA negotiations;
  • the consequences of breaching a DPA; and
  • whether DPAs should make use of independent monitors or other supervisory mechanisms.

One of the key issues for Australia will be the amount of discretion given to prosecutors and the level of judicial oversight. In the United States, the amount of judicial oversight is minimal, with some describing the process as no more than the court giving the agreement a “rubber stamp”. Meanwhile, in the United Kingdom courts are heavily involved in the process and must be satisfied that the proposed DPA is in the interests of justice and that its terms are fair, reasonable and proportionate. For example, in approving the first DPA under the UK regime, the court noted that factors weighing in favour of approving the agreement included the promptness of the company’s self-reporting, the fully disclosed internal investigation and its cooperation with external investigators.

What you need to know?

  • The Australian Government has released a public discussion paper on the possibility of introducing Deferred Prosecution Agreements in Australia.
  • Submissions have been called for by no later than close of business Monday 2 May 2016.

What you need to do?

  • Consider whether you would like to respond to the consultation paper.
  • Contact us if you would like any assistance with making a submission or any further information.