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
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
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.
This increase has financial implications for companies and individuals found guilty under a wide range of Federal laws.
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