In recent weeks, the press has shone a big spot light on
corruption issues. These range from:
Numerous arrests of officials relating to corruption
allegations and the ensuing scrutiny of Football Federation
Australia's (FFA) 2022 World Cup bid, causing an unravelling of
the "beautiful game's" governing body, FIFA.
A property deal in Melbourne with kickbacks allegedly made to
senior government officials within Malaysian government.
Australian and Papua New Guinean lawyers being caught on camera
providing the 'how to' manual of bribe paying and money
It makes for interesting reading and affirms how pervasive and
cross jurisdictional corruption is in our global society.
The increasing number of bribery and corruption issues reported
in the press (and our low levels of enforcement of anti-corruption
legislation) show that, when compared to other Western countries
such as the United States and the United Kingdom, Australia has
dragged its heels in respect of the refrom and enforcement of our
While Australians are generally compelled by the ethos of a
'fair go' for everyone, bribery and corruption does the
opposite. It is in this context that last week's announcement
that the Australian Senate will hold an inquiry into foreign
bribery is a much welcomed development. We've set out the terms
of reference in the box below.
Any interested party will be able to make a submission about
foreign bribery to assist the Senate Committee make recommendations
for much-needed reform.
Our KordaMentha Forensic practitioners have dealt with bribery
and corruption issues in many different contexts, both in the
public and private sectors in Australia and overseas. The types of
matters that KordaMentha professionals have worked on in their
careers prior to and whilst at KordaMentha include:
A global investigation that produced the largest Foreign
Corrupt Practices Act (FCPA) settlement to date.
Global Petroleum Company – investigated the circumstances
relating to certain payments relating to the construction of a fuel
depot at the Manila International Airport.
Subsidiary of global diversified technology company –
conducted an anti-corruption compliance review of one of its
business partners in Malaysia. The business partner had been
engaged to assist in procuring a pilot project for the installation
of LED lighting on a number of motorways. A number of corruption
'red flags' were identified and reported to the
Australian subsidiary of mining equipment manufacturer –
ahead of the acquisition of the global business, conducted an
anti-corruption compliance review. For one contract to supply
equipment to a Chinese coal miner, a 'donation' prior to
award of the contract was identified.
Integrity due diligence
Conducted numerous pre and post-merger and acquisition
integrity due diligence investigations on behalf of US companies.
One of the main objectives of these reviews was to ascertain
whether the merger or acquisition target had a history of
involvement in corrupt activities.
Based on the collective knowledge gained from this experience
we have undertaken to provide our views on the matters contained
within the terms of reference for the inquiry.
The Senate inquiry will commence on 1 July 2015, with its report
to be tabled on 1 July 2016. The terms of reference of the inquiry
include, but are not limited to:
the measures governing the activities of Australian
corporations, entities, organisations, individuals, government and
related parties with respect to foreign bribery, with specific
reference to the effectiveness of, and any possible improvements
to, Australia's implementation of its obligations under:
the OECD Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions (OECD Convention),
the United Nations Convention against Corruption (UNCAC);
as part of, or in addition to, paragraph (a), the effectiveness
of, and any possible improvements to, existing Commonwealth
legislation governing foreign bribery, including:
Commonwealth treaties, agreements, jurisdictional reach, and
other measures for gathering information and evidence,
the resourcing, effectiveness and structure of Commonwealth
agencies and statutory bodies to investigate and, where
appropriate, prosecute under the legislation, including cooperation
standards of admissible evidence,
the range of penalties available to the courts, including
debarment from government contracts and programs,
the statute of limitations,
the range of offences, for example:
false accounting along the lines of the books and records'
head in the US Foreign Corrupt Practices Act,
increased focus on the offence of failure to create a corporate
culture of compliance',
liability of directors and senior managers who do not implement
a corporate culture of compliance, and
liability of parent companies for subsidiaries and
intermediaries, including joint ventures,
measures to encourage self-reporting, including but not limited
to, civil resolutions, settlements, negotiations, plea bargains,
enforceable undertakings and deferred prosecution agreements,
official guidance to corporations and others as to what is a
'culture of compliance' and a good anti-bribery compliance
private sector whistleblower protection and other incentives to
report foreign bribery,
facilitation payment defence,
use of suppression orders in prosecutions,
foreign bribery not involving foreign public officials, for
example, company to company or international sporting bodies,
the economic impact, including compliance and reporting costs,
of foreign bribery...'
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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Two criminal offences relating to "false dealing with accounting documents" have been introduced into the Criminal Code.
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