Australian firms issued new guidelines on reporting foriegn bribery

| January 10, 2018

The Australian Federal Police (AFP) and the Commonwealth Director of Public Prosecutions (CDPP) have released a new document to help firms assess their responsibilities in self-reporting foreign bribery.

The AFP and CDPP Best Practice Guideline offers a clear framework for self-reporting suspected incidents, clarifying AFP and CDPP principles and process regarding self-reported activity associated with foreign bribery, money laundering, false documents and false accounting.

Commander Peter Crozier, the AFP Manager of Criminal Assets, Fraud and Anti-Corruption said the guideline outlined public expectations regarding companies’ assistance with investigations.

“Investigations into foreign bribery and similar offences can be complex and protracted. That’s why we have consulted extensively with CDPP, business groups and the private sector to produce a framework that will clarify our processes and expectations during investigations,” Commander Crozier said.

“It’s pleasing to see that corporations are keen to introduce mechanisms to enhance cooperation with law enforcement. This guideline aims to help them model best practice in corporate governance and take action if they suspect a breach.”

The CDPP’s Acting Deputy Director of the Commercial, Financial and Corruption Group, Berdj Tchakerian said that the document also offers companies and their advisors important information about when a self-reporting corporation might be prosecuted.

“The Guideline operates within the framework of the Prosecution Policy of the Commonwealth and details key information on how the ‘public interest’ test may be applied in deciding whether to prosecute a self-reporting corporation” said Mr Tchakerian.

The release of this guideline, along with proposed legislative amendments introduced into the Parliament on 6 December 2017, give the AFP and CDPP further tools to use in the detection, investigation and prosecution of foreign bribery and related offences.

The new Parliamentary amendments create a new offence of failing to prevent foreign bribery, along with the introduction of Deferred Prosecution Agreements.

The guide delivers on recommendations made by the Organisation for Economic Cooperation and Development in its Phase 3 report into Australia’s implementation of the OECD Anti-Bribery Convention to develop a clear framework to address the nature and degree of cooperation of a corporation where foreign bribery or related activity is suspected to have taken place.

The guidelines noted that foreign bribery is, by its nature, a complex and covert crime however it argues that the self-reporting of foreign bribery is consistent with directors’ ethical obligations and is in the public interest.

Self-reporting is also a significant first step in assisting law enforcement agencies to investigate and prosecute offences of foreign bribery in a timely manner.

On a more self interested note, self-reporting is a relevant public interest factor for the CDPP to take into account when determining whether a corporation should be prosecuted for conduct which it has brought to the attention of the authorities.

In a worst case scenario, if a firm self-reports an offence for which it is subsequently prosecuted, its co-operation with the authorities will be a mitigating factor the court must take into account at sentencing.