Australia: Deferred prosecution agreement (DPA) scheme to combat white-collar crime

The Australian Government is considering introducing a deferred prosecution agreement scheme. A DPA is a voluntary, negotiated settlement between a prosecutor and a defendant. DPAs are used in the US and UK for serious corporate offences.

In this article, Phillip Hoskin, a Director in our Sydney office, summarises last month's Government Business Roundtable on Anti-Corruption. Law enforcement and business representatives discussed ways to foster cooperation, including proposed DPAs and developing a corporate culture of integrity.

What is a deferred prosecution agreement?

DPAs help law enforcement agencies tackle white-collar crime. Both the US and UK have achieved substantial settlements. DPAs are said to be transforming corporate culture.

There are two important features of DPAs:

  1. Where a company or company officer have engaged in serious corporate crime, prosecutors can invite the company to negotiate an agreement to comply with a range of specified conditions. These conditions typically require the company to cooperate with any investigation, admit to agreed facts, pay a financial penalty, and implement a program to improve future compliance. No prosecution will occur in relation to the matters that were the subject of the DPA, as long as the company fulfils its obligations under the agreement.
  2. A breach of the terms of a DPA may result in a prosecution or renegotiation of the DPA terms.

What offences would be included in an Australian DPA scheme?

The proposed Australian DPA scheme would apply only to companies (not individuals). DPAs would only be available for Commonwealth 'serious corporate crime' offences, such as:

  • Fraud
  • False accounting
  • Foreign bribery
  • Money laundering
  • Dealing with proceeds of crime
  • Forgery and related offences
  • Exportation and/or importation of prohibited or restricted goods
  • Specific offences under the Corporations Act
  • Any ancillary offence relating to which the DPA scheme explicitly applies

The Australian Government is assessing whether other types of crime (such as environmental crime, tax offences, cartel offences and offences under workplace health and safety legislation) should be included in a DPA scheme.

What is the proposed process?

The Australian Government proposes the following model for a DPA scheme:

  1. Initiation of DPA negotiations
    • Whether to enter into DPA negotiations would be at the discretion of the Commonwealth Director of Public Prosecutions (CDPP).
    • The DPA negotiation period would begin with a letter to the company offering to begin DPA negotiations.
  1. Negotiation
    • The terms of a DPA would be determined by the CDPP and the company. The terms would be adapted to suit the particular case but might include requirements to pay financial penalties and the costs of administering the DPA; and an agreement to implement corporate compliance programs.
    • An outcome of the negotiations could be the CDPP resolving either to take no action or to prosecute; either party abandoning negotiations; or the production of a final DPA for approval.
  1. Approval
    • A prosecutor would be required to make an application to a retired judge, seeking approval of the final terms of the DPA.
    • The retired judge would consider whether the DPA was in the interests of justice and whether the terms were fair, reasonable and proportionate.
    • If the retired judge approved the DPA, it would take effect and be published on the CDPP's website. If the DPA was not approved, the parties would be able to negotiate further, or terminate the negotiations.
  1. Oversight and response to DPA breaches
    • If appropriate, independent monitors would be appointed at the company's expense to ensure that the company complied with the DPA. The monitor would report to the CDPP.
    • The CDPP might attempt to address breaches of DPAs by providing the company with an opportunity to address the breach and/or renegotiate the terms of the DPA.
    • If this did not resolve the breach, the CDPP might seek to resolve the matter by referring the breach to another party. It is undecided whether this would be the Director of the CDPP, a retired judge, or a court.
    • If this other party determined that the DPA had been materially breached, the CDPP might prosecute for the matters included in the DPA.
  1. Conclusion of a DPA

DPAs would be concluded by either:

  • A material breach of a DPA.
  • Fulfilment of the terms of the DPA and the subsequent undertaking by the CDPP not to prosecute the company in relation to the matters that were the subject of the DPA.
  1. Other issues

Use of information

  • Material disclosed by the company during DPA negotiations would not be disclosed (other than to relevant enforcement and investigative agencies) or used in subsequent criminal or civil proceedings if it was created solely to facilitate, support, or record DPA negotiations.
  • Exceptions to this would include a company providing false, misleading, inaccurate or incomplete information during the negotiations. Also, if a company either breached the DPA or made a statement inconsistent with the disclosed material in a prosecution for some other offence.

Publication of DPAs

  • DPAs would normally be published in full, except, for example, where full publication would prejudice court proceedings. At the end of the DPA process the CDPP would publish details on how the company had complied with the DPA's terms and conditions.
  • The CDPP might also be required to publish details of any breach, variation or termination of the agreement.

Use of DPA funds

  • DPAs are likely to include conditions that a company make payments – for example, to disgorge profits from their misconduct, or to provide restitution to victims.
  • A DPA might require the company to pay costs associated with establishing and monitoring the DPA.

What is a material breach of a DPA?

  • The Australian Government proposes that a material breach of a DPA might include:
  • The breach so significant that it is in the public interest to terminate the DPA and commence prosecution.
  • The company committing further criminal offences.
  • The breach such that the integrity of the DPA scheme could be significantly compromised if prosecution does not result.
  • Parties not agreeing on a response to an otherwise minor breach.
  • A pattern or sequence of minor breaches which, when assessed cumulatively, suggest that the company was not making sufficient efforts to meet its DPA obligations.
  • The company not otherwise appearing to be committed to its DPA obligations.

Why is the Australian Government proposing a DPA scheme?

The proposed DPA model is an important step in developing a new enforcement mechanism for serious corporate crime such as foreign bribery, fraud, and money laundering.

Corporate crime is estimated to cost Australia more than $8.5 billion a year, and accounts for about 40 per cent of the total cost of crime in Australia.

Corporate crime can increase costs for individual businesses, expose business to legal and reputational risks, create an uneven playing field and distort markets.

A DPA scheme would help law enforcement work with business to deal with corporate crime, providing an incentive for companies to come forward, and would give-prosecutors an extra tool.

A DPA scheme would also contribute towards Australia meeting its international obligations to combat corruption and related criminal conduct; and enable the Australian Government to use DPAs in international settlements with multinational companies.

Why does the Australian Government need to foster cooperation between business and law enforcement?

Commonwealth law enforcement faces challenges in effectively detecting, investigating and prosecuting serious corporate crime. Investigations can run for several years because of large volumes of complex data and negotiations over issues such as legal professional privilege. Evidence may be held overseas and therefore require investigators to go through mutual assistance processes. At the prosecution stage, court proceedings can be long and expensive.

Why is the proposed DPA scheme good for Australia?

An Australian DPA scheme for serious corporate crime should improve law enforcement's ability to detect and pursue crimes committed by companies and help to compensate victims. It should help avoid lengthy and costly investigations and prosecutions, and provide greater certainty for companies seeking to report and resolve corporate misconduct. It would be compatible with the Government's policy to tackle crime and ensure that our communities are strong and prosperous. It should also minimise impacts on innocent third parties, such as the employees of the company, its customers, suppliers and investors.

Does a DPA provide companies with a 'free pass' to commit serious corporate crime?

The Australian Government proposes to use DPAs carefully, taking into account other available enforcement and prosecution options. Safeguards included in the proposed model include that prosecutors could only offer a DPA where it is in the public interest to do so, and a final DPA could only be approved where its terms are found to be in the interests of justice.

What is a recent example of a DPA being used?

In 2016, investigations into corruption by Rolls-Royce resulted in it settling DPAs with the US and UK governments as well as a leniency agreement with the government of Brazil.1

Can you provide feedback on the proposed DPA model?

The Australian Government floated the proposal for the DPA scheme in a 2016 public discussion paper, which received overwhelming support.

On 31 March 2017, the Minister for Justice released a consultation model for a proposed Australian DPA scheme, with a deadline for responses of 1 May. The Australian Government invites comments on the proposed model, which will inform the introduction of the scheme later this year. The discussion paper can be found at


1Australian Government Attorney-General's Department 2017, Improving enforcement options for serious corporate crime, A proposed model for a Deferred Prosecution Agreement scheme in Australia, viewed 3 April 2017,

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Topics
Related Articles
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions