Answer ... Companies can benefit from leniency in Australia if they make an early report of potential illegal corrupt conduct or the payment of bribes and offer to cooperate with investigators.
The benefit, however, is not in the form of any agreed resolution. Cooperation may, at one level, result in the prosecutor determining not to lay charges. If charges are laid, however, then the only benefit from cooperation, in practice, is to admit guilt, often accept a conviction and seek to mitigate the sentence to be imposed by the court. The determination of the sentence cannot, under Australian criminal law, be the subject of agreement between a company or an individual and the prosecutor. The determination of sentence lies entirely within the discretion of the sentencing judge. There are extensive statutory matters that a sentencing judge must take into account in determining a sentence “that is of a severity appropriate in all the circumstances of the offence”. An early plea can usually result in a substantial discount on sentence.
Answer ... In itself, the existence of an anti-corruption compliance programme does not constitute a defence to any bribery offence, whether a foreign bribery offence or a domestic bribery offence.
As noted above, the existence of a compliance programme may assist a company in satisfying the investigator (the Australian Federal Police) and prosecutor that the company had a culture of compliance, and that its compliance programme should be taken into account and be accorded significant weight in a determination of whether to prosecute, and if so, the extent to which any conviction and sentence is to be imposed.
Answer ... The two statutory defences to the foreign bribery offence are:
- whether the conduct was justified by a written law of the foreign country where the conduct took place; or
- whether the payment constituted a facilitation payment.
In defending any prosecution, a company, in order to assess whether corporate criminal liability should be attributed to it, must take into account the conduct of its directors, executors, managers and employees to determine the extent to which the threshold test for corporate criminal liability can be satisfied and, for example, whether an employee is a ‘high managerial agent’ of the company sufficient to attribute his or her conduct to the company.
Answer ... A company can seek to negotiate with the CDPP at an early stage with a view to seeking to persuade the CDPP not to prosecute or, if prosecuted, to agree to a resolution subject to the sentencing discretion of the court.
However, if a prosecution takes place, there is no statutory or other process to resolve the matter other than through the traditional forms of plea bargaining, rolled-up charges or reduced charges that might be agreed to with the CDPP. which then must be put to the sentencing judge to determine the appropriate sentence.
An accused can further seek to negotiate a resolution with the CDPP at any time (individuals often seek to avail themselves of this). The DPP Act grants the CDPP the power to offer levels of undertakings and/or immunities to a prospective accused person, subject to various conditions.
Answer ... For a foreign bribery offence committed after 1 July 2017, the maximum penalties that may be imposed upon a conviction, for each offence, include:
for an individual:
- imprisonment of up to 10 years;
- a fine of 10,000 penalty units (the value of one penalty unit is currently A$210, so the maximum fine is currently AU$2.1 million); or
- both imprisonment and a fine; and
for a corporation, the greater of the following:
- a fine up to 100,000 penalty units (A$21 million); or
- if the court cannot determine the value of the benefit obtained directly or indirectly that is reasonably attributable to the offending conduct, three times the value of the benefit; or
- if the court cannot determine the value of the benefit, then 10% of the annual turnover of the corporation during the 12-month period ending at the end of the month in which the conduct constituting the offence occurred (which is described in the legislation as the turnover period).
There are a range of penalties under state legislation and other commonwealth domestic bribery offences, from substantial fines to imprisonment for between five and 10 years for individuals.
In Australia, there is no regime whereby a company convicted or corruption offences is necessarily excluded from public procurement or other public benefits or aid work, or is disqualified from the practice of certain commercial activities.
If civil penalty proceedings are commenced by the Australian Securities and Investment Commission against directors or officers of a company alleging breach of their statutory duties (relying upon the underlying conduct constituting the alleged corruption or bribery), the court may, upon the declaration of offending conduct, in breach of statutory duty, make orders disqualifying such individuals from holding office and/or managing a corporation for a nominated period of time.
Answer ... There is no limitation period for the prosecution of anti-corruption offences, either domestically or outside Australia.