Archive for the ‘Australia’ Category

Checking In Down Under

Monday, September 14th, 2015

AustraliaToday’s post is from Robert Wyld (Partner, Johnson Winter & Slattery in Sydney).

Wyld is the Australia Expert for FCPA Professor.


This post covers a range of important developments in Australia and the region in the area of foreign bribery policy, investigations and regulation as of September 1, 2015.

Topics covered in this post include:

  • Australia – Senate Review into Australia’s Foreign Bribery Laws
  • Australia – Securency suppression order lifted, Asian politicians identified
  • Australia – books and records and internal controls and BHP Billiton’s Beijing Olympics hospitality program
  • Australia – Fraud Against the Commonwealth Report 2015
  • Australia – Ernst & Young review of bribery in the mining and metals industries
  • Australia – NSW ICAC and “serious corruption”
  • New Zealand – Update on Organised Crime and Anti-Corruption Bill

Australia’s Senate Review into Australia’s Foreign Bribery Laws

From July 2015, the Senate Economics Reference Committee commenced its long-publicised review into Australia’s foreign bribery laws.  Submissions have been called from interested parties, to be lodged with the Senate by 24 August 2015.  The Committee is to finalise its report by 1 July 2016.

There are likely to be numerous topics up for review by the Senate.  These include:

  • an entire review of section 70 of the Criminal Code (the foreign bribery offence) given we have seen only 2 prosecutions in over 15 years;
  • abolishing facilitation payments;
  • improving the corporate criminal liability provisions (again because there have been no prosecutions);
  • considering the introduction of a deemed corporate liability offence reflecting section 7 of the UK Bribery Act with an “adequate procedures” defence;
  • introducing structured Deferred Prosecution Agreements (currently under review);
  • reviewing how the existing enforcement agencies work together – AFP or ASIC – and the role of the CDPP;
  • creating a books & records and internal controls offence with substantial penalties (under the Corporations Act for ASIC to enforce or the Criminal Code for the AFP to enforce);
  • introducing comprehensive whistleblower protections and rewards in the private sector;
  • considering the publication of an Australian Foreign Bribery Guidance to business similar to guidance published in the US and the UK;
  • reviewing and implementing a national Anti-Corruption Plan, modelled on the UK plan; and
  • creating an independent Federal anti-corruption commission.

There appears to be a fundamental fracture in the present system of investigation and enforcement of foreign bribery laws in Australia.  Throughout the 22 submissions lodged with the Senate:

  • almost all describe Australia’s foreign bribery enforcement record as weak, poor or ineffectual;
  • almost all, bar 2, strongly encourage the abolition of the facilitation payment defence while 1 suggests if the defence remains, clear guidance should be published on payments that are permitted;
  • several encourage a complete review of the current investigation and enforcement regime; and
  • most submissions note the lack of a whole-of-government approach to targeting foreign bribery, with the result that there is as perception amongst business (and the community more generally) that prosecutions for illegal commercial conduct (foreign bribery) are rare, too hard and complex so just get on with your business, risky though it may be.

In over 15 years, we have seen only two prosecutions for offences under section 70 of the Criminal Code.  The Securency case commenced in July 2011 and most details of it are suppressed in Australia.  The Lifese foreign bribery prosecution commenced in February 2015.  We have seen no corporate criminal liability prosecutions relating to foreign bribery (under sections 12.1 to 12.6 of the Criminal Code).  We have seen no civil prosecutions for false or misleading books and records.  We have seen ASIC spend almost 6 years pursuing former AWB directors and officers for alleged breaches of their duties arising out of the infamous AWB wheat sales to Iraq in the early 2000s, two agreed to fines and a disqualification period (the former Managing Director and Chief Financial Officer), two had their cases discontinued in late 2013 and 2 face trial listed to commence in October 2015.

Why is that? Is the law too difficult to enforce?  There have been no substantive changes to the law so that can hardly be the issue.  Are cases too hard to prove or is the CDPP seeking too high a threshold to prosecute (certainty of success rather than evidence of a reasonable basis to secure a conviction, as the CDPP Prosecution Policy promotes)?  What role should ASIC and the AFP play and how can criminal and civil prosecutions be improved are key areas to review.

The national Fraud & Corruption Centre hosted by the AFP draws upon multi-agency skills and experience, yet still Australia sees or hears little about why there is so little enforcement.  It is time to reassess the overall management of Australia’s national response to fraud, corruption and foreign bribery and to decide if it is important enough for political leadership to dedicate resources to the process consistent with Australia’s international obligations.  We all like to be a Convention signatory but are we prepared to live up to convention obligations?

Australia – Securency Suppression Orders and Foreign Politicians

Annexure A to the CDPP Prosecution Policy states that the Commonwealth Director of Public Prosecutions has issued the following statement:

When deciding whether to prosecute a person for bribing a foreign public official under Division 70 of the Criminal Code, the prosecutor must not be influenced by:

  • considerations of national; economic interest;
  • the potential effect upon relations with another State; or
  • the identity of the natural or legal persons involved.

This statement reflected the terms of Article 5 of the OECD Convention.  There is however, no law in Australia giving effect to this “obligation”.

Australian courts all have statutes or rules that permit the suppression or non-publication of certain facts, information or evidence or the whole or part of a proceeding before the Courts.

In June 2014, the Australian Government through Department of Foreign Affairs & Trade (DFAT) secured suppression orders seeking to protect the identity of various Asian political figures from being named as alleged participants in the Securency bribery scandal in circumstances where those individuals were not charged with any offence.  The DFAT notice informing the Court of its application for a suppression order stated that its purpose was “to prevent damage to Australia’s international relations that may be caused by the publication of material that may damage the reputation of specified individuals who are not the subject of charges in these proceedings.”   Quite why Australia should be concerned to protect the reputation of Asian-based politicians who can well look after their own reputation (and often do by suing for defamation and using national sedition laws to silence critics) is not entirely clear from the judgment (as the key evidence is redacted).

In June 2015, the Court revisited its initial orders on the application of the Australian media.  After hearing debate, the Court’s judgment discharged the initial suppression orders.  While the Court was critical of Wikileaks for publishing the June 2014 orders and the media for inaccurate reporting of the effect of those orders, the Court was not persuaded to maintain the suppression orders.  The Court characterised DFAT’s evidence as “unsourced or second-hand hearsay” and was drafted “at an unsatisfactory high level of vagueness or generality.”   The Court made it clear that the strong public interest in the public knowing about the Securency case and what did or did not happen had to be balanced with countervailing public interest considerations concerning protecting the administration of justice and Australia’s national security – matters that DFAT bore the onus of establishing, which it failed to do.

Article 5 of the OECD Convention is clear – economic interests or the identity of persons is and should not be a relevant consideration.

When individuals may be named in any criminal proceeding, it is for the Court and those persons to deal with it – it should not be the role of Government to come in and seek to protect friendly politicians in the name of “national security” (whatever that means on any particular day).  It is important to remember that to be truly effective, foreign bribery offences need to target not only those responsible for paying the bribe but also those who either directly or indirectly – whether at first instance or second instance or even more remotely – benefited from the bribe.  Seeking to suppress the name of some individual who allegedly ultimately received some benefit from the illegal conduct does not assist foreign Sovereign States in preventing bribery of their public officials The use of suppression orders in circumstances such as these should only be granted in the most exceptional of cases and rarely if ever in foreign bribery cases (given the very high level of public interest in requiring such cases to be public and transparent) so justice is not only done but is seen to be done in the eyes of the public and society generally.

Australia – Books and Records, Internal Controls and BHP Billiton

There is a significant failing in Australia’s laws in relation to foreign bribery – there are no comparable books and records and internal controls offences in Australia as there is under the US FCPA, as enforced with great success by the US SEC.

The FCPA requires issuers (those listed entities or other entities trading in US-listed shares subjected to the FCPA) to make and keep books, records and accounts which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the entity’s assets.  In addition, issuers must devise and maintain a system of internal accounting controls that assures that transactions are executed and assets are accessed only in accordance with management’s authorisation; are periodically reconciled and recorded so that the entity’s financial statements conform to nominated standards.  Critically, issuers are strictly liable for the failure of any of their owned or controlled foreign affiliates to meet the books and records and internal control standards.

Under the Corporations Act, a corporation is already required to keep written financial records that correctly record and explain its transactions, financial position and performance and which would enable true and fair financial statements to be prepared and must not falsify records or provide false information.  Conduct in contravention of these provisions are offences of strict liability with penalties ranging from fines of up to 200 penalty units (or approximately $34,000 and/or 5 years imprisonment per offence).  A director is liable to a civil penalty if he or she fails to take all reasonable steps to comply or to secure compliance with the record-keeping provisions.

This brings us to BHP Billiton’s hospitality program for the Beijing Olympics in 2000, having been named as a principal sponsor and having secured a contract to mint the medals for those Olympics.  BHP Billiton is a dual listed Australian and UK entity and one of the largest mining corporations in the world.

On 20 May 2015, the US SEC announced that BHP Billiton would be fined an amount of US$25 million for contraventions of the books and records and internal control provisions of the FCPA.  According to the press release issued by the SEC:

An SEC investigation found that BHP Billiton failed to devise and maintain sufficient internal controls over its global hospitality program connected to the company’s sponsorship of the 2008 Summer Olympic Games in Beijing.  BHP Billiton invited 176 government officials and employees of state-owned enterprises to attend the Games at the company’s expense, and ultimately paid for 60 such guests as well as some spouses and others who attended along with them.  Sponsored guests were primarily from countries in Africa and Asia, and they enjoyed three- and four-day hospitality packages that included event tickets, luxury hotel accommodations, and sightseeing excursions valued at $12,000 to $16,000 per package.

BHP Billiton footed the bill for foreign government officials to attend the Olympics while they were in a position to help the company with its business or regulatory endeavours,” said Andrew Ceresney, Director of the SEC’s Division of Enforcement.  “BHP Billiton recognized that inviting government officials to the Olympics created a heightened risk of violating anti-corruption laws, yet the company failed to implement sufficient internal controls to address that heightened risk.

What is the response from Australia – little to non-existent save for suggestion in the media (The Sydney Morning Herald 9 August 2015) that the AFP was still investigating BHP Billiton in relation to the Beijing Olympics activities.  Certainly there is no suggestion in the media or from ASIC that ASIC is investigating BHP Billiton for any allegedly false or misleading books and records offences arising out of the Beijing Olympics case.  In all probability, the US and Australian authorities accepted that if BHP Billiton was to be punished, the US authorities would do it as the laws in Australia were in all likelihood seen as inadequate.

It is important that a substantial books and records and internal controls offence for foreign bribery must be created and the penalties must be as severe as the underlying primary foreign bribery offence (in section 70.2 of the Criminal Code).  Careful consideration should be given to whether these offences are included in the Corporations Act (to be enforced by ASIC) or in the Criminal Code (to be prosecuted by the CDPP) and wherever they exist, they are properly and robustly enforced.

Australia – Fraud Against the Commonwealth and a national ICAC

Fraud, including corruption (involving an abuse or misuse of public position), is and continues to be an endemic problem for all governments.  There is no reason in principle or practice for the focus on foreign bribery to be at the cost of not addressing national, domestic corruption, however uncomfortable that might be to national politicians and public officials.

There are certain key views about fraud in and affecting the Commonwealth government that have recently been reviewed (Australian Institute of Criminology, Fraud Against the Commonwealth 2010-2013, Canberra, July 2015).

Over the 3 years between 2010 and 2013, there were at least 265,866 incidents of suspected fraud reported by Commonwealth entities.

  • Each year, substantially greater numbers of external fraud incidents were detected than suspected internal fraud incidents.
  • Fraud involving financial benefits was the most frequently reported category of external fraud.
  • Over the 3 years, the number of fraud-related corruption increased substantially from 37 incidents in 2010-2011 to 163 in 2012-2013.
  • While the cost of this fraud is hard to quantify and figures may vary, a conservative estimate is approximately $530m over 3 years, with increases from $119m in 2010-2011 to $204m in 2011-2012 to $207m in 2012-2013.
  • Over the 3 years, external fraud accounted for $521m while internal fraud amounted to $9.1m or 1.7% of the total reported fraud losses.
  • In relation to external fraud:
  • risks arise in connection with the provision of new benefits, the introduction of new taxes, procurement practices, government-funded programs and the use of consultants; and
  • the relationship between corruption and collusion between external actors and those public servants working within government.

The Resources Management Guide No 201 Preventing, Detecting and Dealing with Fraud, reflecting the 2011 Commonwealth Fraud Control Guidelines, require Commonwealth entities to investigate routine or minor instances of fraud.  More serious instances are usually referred to the AFP.

Who investigates Government fraud at the Commonwealth level?  In the first instance, the relevant entity conducts its own investigation.  If the incident is more serious, the AFP is usually called in pursuant to a referral and if charges arise, they are conducted by the CDPP. More broadly, the Commonwealth Integrity Commissioner, supported by the Australian Commission for Law Enforcement Integrity, is responsible for preventing, detecting and investigating serious and systemic corruption issues in a limited number of prescribed Australian Government law enforcement agencies.

The Criminal Code contains extensive provisions dealing with offences involving Commonwealth public officials which are separate from the foreign bribery offence.  Nevertheless, foreign bribery and corruption (involving public officials and private commercial interests) are but one shade of fraud in a general sense as the public invariably perceive it.  To have proactive anti-corruption commissions at the State level, but nothing at the Commonwealth level is, to say the least, very puzzling.  The public is rightly sceptical of politicians who are the first to cast accusations at opponents for impropriety, yet then duck and weave when anyone suggests a truly independent body be created to review allegations of improper or illegal conduct.  The creation of such a body can only improve the public’s perception of politicians and the political process which ought to place trust, integrity and ethical conduct at the forefront of how our community leaders behave.

Australia – Ernst & Young Fraud, Bribery & Corruption Survey in the Mining and Metals Industry

In August 2015, Ernst & Young published their 2015 report on Managing fraud, bribery and corruption risks in the mining and metals industry.

In the extractive industries, Ernst & Young see two leading developments – an increasing globalisation with multinationals operating across the globe with increasing risk profiles and second, global anti-corruption enforcement on the rise.  These developments are not exclusive to extractive industries.  Based on figures from TRACE International, extractive industries accounted for the highest number of fraud, bribery and corruption enforcement actions for any given industry.

Other important lessons from the report include the following:

  • an increased cooperation between international regulators;
  • fraud and corruption is seen by corporations as one of the top risks to manage;
  • despite increased enforcement and regulation, corporations still take risks, paying cash to win or retain business or misstating financial records;
  • facilitation payments remain the norm for many corporations in high risk countries and properly complying with strict recording obligations is patchy.

It is expected legislation will be introduced and supported by all sides of politics and in the words of the NSW Premier, “we want ICAC to get cracking…we want it to continue to hunt down serious and systemic corruption in this state.”

Australia – NSW ICAC and “Serious Corruption”

In August 2015, the New South Wales Government announced its response to the independent review of the function and powers of the NSW Independent Commission Against Corruption (ICAC).  This review was prompted by ICAC’s ultimately unsuccessful and aborted investigation into the conduct of a serving senior Crown Prosecutor and rulings by the High Court of Australia (see Independent Commission Against Corruption v Cunneen [2015] HCA 14 where the Court held that ICAC could not investigate cases in which a private citizen adversely affected the functions of an honest public official) that the investigation was beyond ICAC’s powers.  In the interim, the NSW Government had legislated to validate all of ICAC’s then existing findings and investigations.

The NSW Government will:

  • limit ICAC’s jurisdiction to making findings “only in the case of serious corrupt conduct”;
  • permit ICAC to investigate the conduct of non-public officials in limited circumstances (such as collusive tendering, fraud in or relation to applications for mining licenses and dishonestly benefiting from the payment of public funds); and
  • permit ICAC to examine breaches of donation and lobbying laws

New Zealand – Update on Organised Crime and Anti-Corruption Bill 2015

The Organised Crime and Anti-corruption Legislation Bill is part of the New Zealand Government’s All of Government Response programme to combat serious crime.  The Bill, introduced to Parliament in June 2014, gives law enforcement agencies in New Zealand the power to deal with organised crime and corruption.  The Law and Order Committee reported the Bill back to the Parliament on 4 May 2015 and it is currently awaiting Committee of the whole House stage.

Key new measures introduced by the Bill, relevantly include:

  • requiring banks to report all international transfers of $1,000 or more and all physical cash transactions of $10,000 or more to the NZ Police  Financial Intelligence Unit;
  • redrafting the money laundering offence to specify that intent to conceal is not required
  • introducing new offences to address identity crime, including selling or passing on identity information
  • amending the Policing Act 2008 to expressly provide Police with a power to share information with its international counterparts;
  • revising the foreign bribery offence, including clarifying the circumstances in which a corporation is liable for foreign bribery;
  • increasing penalties for bribery and corruption in the private sector to bring them into line with public sector bribery offences.

Checking In Down Under

Tuesday, December 30th, 2014

AustraliaToday’s post is from Robert Wyld (Partner, Johnson Winter & Slattery – here).  Wyld is the Australia Expert for FCPA Professor.


The key issues that are covered in this post include: (i) Australia’s anti-corruption ranking slips down; (ii) The G20 Anti-Corruption Implementation Plan 2015-2016; (iii) Australia’s Attorney General Department’s Foreign Bribery website module; (iv) Australia and ASIC corporate penalties; (v) Australia and China – Operation Fox Hunt – chasing Chinese economic fugitives; (vi) Australia and extractive industry transparency; and (vii) Asia-Pacific Corruption Network.

Australia’s Anti-Corruption Raking Slips Down

On 3 December 2014, Transparency International released its well-known Corruption Perception Index for 2014. Australia slipped out of the top 10 “clean countries” and now sits at No 11 in the ranking of 174 countries.

Prof AJ Brown, a director of Transparency International Australia made the following comments to illustrate why Australia has slipped down the rankings, despite the progress made in leading the G20 to a new Anti-Corruption Implementation Plan (see below):

  • accumulating corruption scandals;
  • a heightened concern as to whether scandals reported in the media and investigated by authorities actually result in any prosecutions;
  • an increasing public perception that Governments do not do enough to seriously target the “big end of town” with the refusal within the Reserve Bank of Australia to admit any problem (with the Securency banknote printing scandal or to independently investigate the conduct of the relevant companies and their Boards of Directors) is just one example; and
  • the consistent reluctance of the Australian Government to acknowledge that corruption is a national problem and failing to even acknowledge that a robust, properly resourced independent national anti-corruption body has a role to play.

It appears that this reluctance to see corruption as a systemic national and international problem in Australia afflicts both the left and right side of politics. In an era of cost cutting, blow-out fiscal budgets and razor gangs cutting swaths through the public sector, business calling for less regulation, it so often just seems too hard for politicians to address. This is unfortunate given the excellent progress Australia demonstrated in leading the G20 to target foreign bribery – now the challenge is to address initiatives focusing on both domestic and foreign bribery with equal zeal and live up to the G20 ideals, failing which the perception of Australia’s anti-corruption efforts is likely to continue to fall, which reflects poorly on us all.

G20 Anti-Corruption Implementation Plan 2015-2016

After the breathless excitement of the G20 meetings in Brisbane in November 2014, the G20 published their collective Anti-Corruption Implementation Plan 2015-2016 (the G20 AC Plan).

The G20 AC Plan identifies key action areas and then for each Action Area, a set of Deliverables over the 2 years of the Plan.  The key Action Areas with their identified Deliverables are as follows:

  • member countries are to identify concrete steps to require the disclosure of ultimate beneficial owners behind any commercial or other structure to promote transparency in all commercial dealings;
  • member countries must promote their own rules on improving transparency in the public sector, including open data, whistleblower protections, immunities from prosecutions, fiscal and budget transparency and standards for public officials, with the Deliverables ranging from practical toolkits, disclosure of assets by public officials to self-assessments of each Members’ compliance with the Plan;
  • to actively promote the criminalisation of foreign bribery and the legal liability of persons (companies and individuals) with a key Deliverable being to focus on the role of intermediaries;
  • improving all levels of government cooperation with a Deliverable focus on acting to identify, recover and return the proceeds of corruption to the victims, countries or entities with enhanced criminal, civil and administrative sanctions and the improved use of anti-money laundering processes;
  • targeting anti-corruption initiatives in high risk areas with a Deliverable focus on customs, extractive industries, fisheries and primary industries and the construction industry; and
  • working to improve private sector transparency and integrity, particularly for small business, incentives for self-reporting, the role of the financial sector in detecting suspicious transactions and for business to adopt robust ethical standards to combat corruption.

The challenge over the next 2 years will be for the G20 member and other countries to take real and meaningful steps to address these issues in the face of inevitable complaints from business about the costs of regulation and compliance, so that these costs and attitudes are seen to work towards sustainable economic growth.

Australia’s Attorney General Department’s Foreign Bribery Module

On 9 December 2014 (world Anti-Corruption Day), the Australian Minister of Justice launched a new inter-active module addressing Australia’s key foreign bribery laws, sanctions, international issues and how business should manage its foreign bribery risks.

The Minister said:

The Australian Government has a zero tolerance approach to foreign bribery and corruption. This type of criminal offence poses a significant risk to Australian businesses operating in overseas markets. There are serious criminal implications for individuals and corporations, both under Australian and foreign laws. Business needs to be aware of the risks and take action to minimise them. The online learning module provides advice on Australia’s anti-bribery policy, the relevant laws and how they apply, and steps that business can take to help promote compliance. It also assists with our whole-of-government programme on foreign bribery and ensures our awareness-raising efforts are efficient, cost-effective and consistent across Government. Australia is reporting to the Organisation for Economic Co-operation Working Group on Bribery later this week on initiatives undertaken since their evaluation of Australia in 2012. The online learning module helps address recommendations to continue to educate and engage with the business community.

The module is available here and companies should consider incorporating the ideas from the module into their existing e-learning or other training modules.

Australia and ASIC Corporate Penalties

Over the last few months, the question of the adequacy of corporate penalties for commercial offences has been bubbling along. In light of various scandals involving banks, their financial planning businesses and other ventures where average investors invested lot and lost a lot more, the ability of ASIC to really prosecute individuals, remains a live debate. Many see ASIC as too weak and too beholden to large companies that generate the fees ASIC collects for the Australian Government.

In the wake of the various Libor-related investigations and prosecutions oversea, ASIC’s Chairman was recently quoted in The Sydney Morning Herald (on 2 December 2014) as saying:

“Tougher penalties, such as more jail sentences, would deter would-be white collar criminals…fear had to be lifted in others to ‘smother the greed’…white collar criminals are scared of going to jail. I had 10 years on Wall Street and going to jail is the thing that scares them most…when they come up to the 18th floor and they put people in handcuffs and wheel them off they don’t come back – it sends a message.”

Yet, despite this bravado, little is seen of any aggressive pursuit of economic criminals in the manner described by ASIC. Hyperbole is all good and well, but without demonstrable action to back up the emotive statements, ASIC appears to many to be little more than a regulator with an angry feather duster.

Australia and China, Operation Fox Hunt

Since July 2014, there has been a range of media coverage on Operation Fox Hunt, a joint initiative between Australian and Chinese investigators and police forces (in China and overseas), targeting corrupt Chinese officials who are purportedly investing corruptly secured assets in Australia.

The media has reported that China has arrested 288 suspects accused of financial crimes across 56 countries as part of its sweeping Operation Fox Hunt. The Chinese Ministry of Public Security said 126 of those suspects were brought back to China and confessed to their crimes. Some of them were apprehended in the US, Canada, and Australia, which have become popular with white-collar criminals because they do not have extradition treaties with China.

The Chinese government declared a deadline of 1 December 2014 for suspects to come forth and surrender to authorities, which could get them more lenient punishments. The operation has required Chinese authorities to co-operate with law enforcement in each of the countries where fugitives reside. While details are scarce, Chinese media quotes the Ministry of Public Security thanking countries for “cooperation and support” in the operation.

In Australia, these developments and the free trade negotiations between Australia and China there have fuelled debate about whether an extradition treaty might be negotiated between China and Australia.  While there are significant issues to address, including the substantial differences in the criminal legal system in the two countries and China’s use of capital punishment, a treaty may not be so insurmountable as some might think, given the new era of trade relationships between China and Australia.

As one Chinese commentator, Yang Hengjun noted in October 2014:

“This is why I believe the “fox hunt” is of the most importance, along with continuing to hunt “tigers and flies” domestically. But compared to “tigers” (which make huge targets) and “flies” (who are everywhere and can be easily caught), the “foxes” are quite cunning. Unless I’m mistaken, the Ministry of Public Security’s “Fox Hunt 2014” has had only limited success. Otherwise, why would the Supreme People’s Court, the Supreme People’s Procuratorate, the Ministry of Public Security, and the Ministry of Foreign Affairs jointly issue a notice urging overseas “economic criminals” to turn themselves in.”

Australia and Extractive Industry Transparency

The recent Corporations Amendment (Publish What You Pay) Bill 2014 (Cth) is Australia’s response to improving transparency in the extractive industries sector, following the US, the UK and Canada introducing mandatory reporting of what in fact is paid by companies to secure valuable business contracts.

Key features of the Bill to note include the following:

  • a mandatory reporting regime for all Australia Stock Exchange listed companies, unlisted public companies, large proprietary limited companies and controlled joint venture companies, involved in a resource extraction activity;
  • a report must be made of any payment, or series of payments of more than AU$100,000 made to a domestic or foreign government (including any authority or company owned by the government);
  • the “reportable payments” are defined broadly to capture such payments as taxes, royalties, licence fees, dividends and “social payments” (to or for community projects);
    • an annual report must be lodged with ASIC making the report publicly available 28 days after receipt by ASIC of the report; and
    • any contravention of the reporting obligations will give rise to an offence under Chapter 2M of the Corporations Act 2001 (Cth) and civil penalties will be available to ASIC if a defaulting company is prosecuted.

The Bill reflects Australia’s commitment to enhancing transparency following the G20 meetings and the increasing focus on how and what type of payments are made to governments and agencies controlled by governments in order to help target and combat corruption. Australian extractive companies should ensure there procedures are reviewed to ensure compliance with the Bill once it is enacted.

Asia-Pacific Anti-Corruption Network

At the 2014 APEC leaders’ meeting in Beijing held in November 2014, APEC agreed to establish an informal structure to facilitate “information sharing” among anti-corruption and law enforcement authorities in the Asia-Pacific region.

It commits the 21 APEC countries, including the United States and China, to “deny safe haven to those engaged in corruption, including through extradition, mutual legal assistance and the recovery and return of proceeds of corruption,” a joint-statement from APEC members said.

Western governments have resisted making extradition deals with China in the past because corruption crimes there are often punished with the death penalty. China has extradition treaties with 38 countries, but not with the United States, Australia or Canada, which have “the highest concentrations of corrupt officials” using those countries to safeguard their illicit assets according to Wang Yukai, an anti-corruption expert at the Chinese Academy of Governance. Mr Yukai also said that:

It will be of great significance if China can build cooperative mechanisms with these countries to capture corrupt officials on the run and recover some economic losses.

The Terms of Reference, adopted at the November APEC meeting require APEC Member States to:

  • establish the ACT-NET as an informal regional anti-corruption platform to permit prosecutors to consult and share practices to improve their investigation and prosecution of corruption (with China as the initial host for 2014 and 2015);
  • help in the training and targeting of corrupt assets to secure their capture and return; and
  • to promote bilateral and multilateral cooperation.

A “Look In The Mirror” Moment

Thursday, August 28th, 2014

Last month, WikiLeaks announced:

“WikiLeaks release[d] an unprecedented Australian censorship order concerning a multi-million dollar corruption case explicitly naming the current and past heads of state of Indonesia, Malaysia and Vietnam, their relatives and other senior officials. The super-injunction invokes “national security” grounds to prevent reporting about the case, by anyone, in order to “prevent damage to Australia’s international relations”. The court-issued gag order follows the secret 19 June 2014 indictment of seven senior executives from subsidiaries of Australia’s central bank, the Reserve Bank of Australia (RBA). The case concerns allegations of multi-million dollar inducements made by agents of the RBA subsidiaries Securency and Note Printing Australia in order to secure contracts for the supply of Australian-style polymer bank notes to the governments of Malaysia, Indonesia, Vietnam and other countries.

The suppression order lists 17 individuals, including “any current or former Prime Minister of Malaysia”, “Truong Tan San, currently President of Vietnam”, “Susilo Bambang Yudhoyono (also known as SBY), currently President of Indonesia (since 2004)”, “Megawati Sukarnoputri (also known as Mega), a former President of Indonesia (2001–2004) and current leader of the PDI-P political party” and 14 other senior officials and relatives from those countries, who specifically may not be named in connection with the corruption investigation.”

For more on the WikiLeaks release, see here.

Coverage of the development was not surprisingly negative.  For instance, this Global Investigations Review article stated that the revealed suppression order “undermines Australia’s attempts to bring enforcement of foreign bribery cases up to international standards.”

To which I say … wait a minute, let’s look in the mirror shall we.

For starters, the Australian case was actually filed in court and the order was issued by a judge.  This simple sentence is more than one can say about the vast majority of corporate FCPA enforcement actions that are resolved via non-prosecution agreements or deferred prosecution agreements in the absence of any meaningful judicial scrutiny.  Add to this, the SEC’s increased use of administrative actions in the FCPA context, and the initial take-away point is that the Australian case – even at its earliest stages – involves a court – something that can not be said in the majority of corporate FCPA enforcement actions.

Moreover, are many FCPA enforcement actions actually transparent?

Can one truly say that the BAE enforcement action and charging decisions (see here, here and here) were transparent and the true facts and circumstances known to the public?

Can one truly say that the public knows the real story behind the James Giffen enforcement action (see here and here)?

In 2003, Giffen was criminally charged with “making more than $78 million in unlawful payments to two senior officials of the Republic of Kazakhstan in connection with six separate oil transactions, in which various American oil companies acquired valuable oil and gas rights in Kazakhstan.”

However, Giffen’s defense was that his actions were made with the knowledge and support of the CIA, the National Security Council, the Department of State and the White House. The DOJ did not dispute that Giffen had frequent contacts with senior U.S. intelligence officials or that he used his ties within the Kazakh government to assist the United States. With the court’s approval, Giffen sought discovery from the government to support his public authority defense and much of the delay in the case was due to the government’s resistance to such discovery and who was actually entitled to see such discovery.

In 2010, the enforcement action took a sudden and mysterious turn when Giffen agreed to plead guilty to a one-paragraph superseding indictment charging a misdemeanor tax violation.  The enforcement action ended with the presiding judge imposing no jail time on Giffen and stating that he was a Cold War hero and that the enforcement action should have never been brought in the first place.

Giffen presumably prevailed over the DOJ not because of the facts or the law, but because he possessed significant leverage over the government in that he asserted his actions were taken with the knowledge and support of the highest levels of the U.S. government.  A Foreign Policy columnist noted that Giffen’s legal team “understood correctly that he could set up a collision between the DOJ and the CIA in which the latter would probably prevail.” Likewise, a Harpers columnist noted that the Giffen enforcement action had “been the focus of political manipulation concern for years” and that the end of the case seemed to ratify that view and “the notion of an independent, politically insulated criminal-justice administration in America [took] another severe hit.”

In short, think what you want about the above-mentioned Australia development.

However, when doing so look in the mirror to realize that U.S. enforcement of the FCPA is, in certain cases, even more troubling.

Checking In Down Under

Monday, August 25th, 2014

Today’s post is from Robert Wyld (Johnson Winter & Slattery), the Australia Expert for FCPA Professor.


This post highlights a range of important developments in Australia and the Asia Pacific Region in the area of foreign bribery policy, investigations and regulation through August 2014.  Issues covered include:

  • Australia’s agenda for the G20 November meetings;
  • Whistleblower protections;
  • Australian courts and “super injunctions”;
  • Australian foreign bribery investigations and prosecutions – media updates;
  • New Zealand amendments to foreign bribery and other economic crime laws; and
  • Asia-Pacific Anti-Corruption Network

Australia’s G20 Anti-Corruption Agenda

The Australian Government has a significant opportunity to proactively shape the anti-corruption agenda at the forthcoming meeting of G20 countries in Brisbane in November 2014. Senior members of the Attorney General’s Department (AGD) are leading the way, seeking to develop initiatives for consideration by all G20 countries.

The Action Plan of 2012 is due to expire in 2014. The AGD is focusing on three key priorities:

  • developing rules for the disclosure of beneficial ownerships;
  • combating foreign bribery; and
  • promoting judicial integrity.

There is a broadly held view that corporate or other structures are regularly used to engage in economic crime, including corruption, and transparency is required to identity the beneficial ownership of a particular entity. Together with targeting foreign bribery and corruption, the G20 governments regard these topics as of high priority.  Each G20 country is to prepare a detailed self-assessment of their performance as against the OECD Convention criteria. Once principles are agreed upon, they will be made public by the G20 leaders.

In terms of any National Anti-Corruption Plan, promoted by the former Labor Government, the Plan appears to have died due to government inactivity and it is not clear whether it will be resuscitated. The public perception from the media is that the current government is not interested in any over-arching Commonwealth anti-corruption body. This is disappointing as history tells us that wherever governments make decisions worth significant money, the existence of corruption rears its head.

ASIC and Whistleblower Protections

The role of protections for whistleblowers is not going away despite the apparent lack of focus within ASIC (Australian Securities and Investments Commission) to manage whistleblower complaints.

On 26 June 2014, the Australian Senate Economics Reference Committee released its report into the ongoing review of ASIC. The Committee made a number of key recommendations:

  • that ASIC establish an “Office of the Whistleblower”;
  • that existing laws should be extended to cover anonymous disclosures;
  • the “good faith” requirement for protected disclosures under the Corporations Act 2001 (Cth) be repealed;
  • the Government explore options to incentivise whistleblowers through a rewards-based system (as currently existing in the US under the Exchange Act).

It will be interesting to see how this last point develops. In the past, the Chairman of ASIC has publicly started he does not favour a scheme that rewards whistleblowers, believing that a reward will in some way corrupt the value of the evidence and undermine a whistleblower’s credibility (although that has not been a problem in the US to date).

Australian Courts and Super Injunctions

Australia is a signatory to the OECD Anti-Bribery Convention.  Article 5 of the Convention reads as follows:

“Investigation and prosecution of the bribery of a foreign public official shall be subject to the applicable rules and principles of each Party. They shall not be influenced by considerations of national economic interest, the potential effect upon relations with another State or the identity of the natural or legal persons involved.”

This principle is reflected in the Prosecution Guidelines issued by the Commonwealth Director of Public Prosecutions (CDPP) where, in Annexure A to the Guidelines dealing with prosecutions for foreign bribery, it is made clear a prosecutor must not be influenced by the factors identified in Article 5 of the OECD Convention. It should be noted that the CDPP has issued Guidelines for Suppression Orders (as at May 2013). These Guidelines acknowledge that while the fundamental principle of open justice should prevail, circumstances involving “national security”, “ensuring a fair trial” and the “protection of vulnerable witnesses” may justify suppression orders.

In June 2014, unbeknown to anyone outside a select group of litigants, the Victorian Supreme Court issued what is known as a “super injunction” in Australia’s prominent foreign bribery case. This injunction prevents the media from reporting anything about the case, the terms of the order or the identity of various persons named in the order. These orders have now been published on the internet by WikiLeaks and have been republished across a range of Asian media. These types of orders, secured in secrecy and imposing draconian contempt penalties for any contravention, sit very uncomfortably with Australia’s international obligations and the principle of open justice. Indeed, when the internet is free to publish such orders and they are republished across the regional media, one can only conclude that such orders are ineffective and are driven by unknown and unstated political or economic or other reasons. The only party that can explain the need for such orders is the Commonwealth Government, yet it remains conveniently silent, no doubt relying on that well-worn phrase “you may think that but I could not possibly comment”.

New Zealand Amends Anti-Corruption Laws and Penalties

The New Zealand Government has published the Organised Crime and Anti-Corruption Bill in Parliament to update its economic crime laws, to allow for a greater degree of international agency collaboration and to reflect the country’s obligations under the OECD and United Nations Conventions.

The principal features of the Bill, in so far as anti-corruption laws are concerned, include the following:

  • authorising the NZ Police to share personal information with their international counterparts;
  • creating a criminal offence to accept a bribe from a foreign public official (attacking the demand side of corruption);
  • creating a criminal offence to accept a bribe for using one’s influence over an official (referred to as “trading in influence”);
  • clarifying the circumstances under which a body corporate commits the criminal offence of bribery and corruption;
  • making it clear that a foreign bribery offence can be prosecuted whether or not the conduct is an offence in  the country in which the conduct occurred;
  • increasing the maximum penalty for imprisonment for a bribery and corruption conviction from 2 years to 7 years;
  • including bribery and corruption offences as a “crime involving dishonesty”;
  • requiring companies to record facilitation payments (permitted under the NZ Crimes Act) in a consistent manner under the Companies Act; and
  • amending the Income Tax Act to ensure bribes are not tax-deductible.

These are important changes and while the maintenance of facilitation payments is still regrettable, the laws demonstrate the NZ Government’s commitment to bringing its domestic laws into harmony with those of other OECD member countries.

Asia-Pacific Anti-Corruption Network

The recent meeting of the APEC Network of Ant-Corruption Authorities and Law Enforcement Agencies, or ACT-NET in Beijing announced the commencement of a new channel or platform for regulatory agencies to exchange information targeting large scale corruption and bribery in the Asia Pacific region. The secretariat will by initially hosted by China, based in Beijing and the Chinese Ministry of Supervision will manage the information sharing in an institutional capacity.

As Fu Kui, Vice Minister of China’s National Bureau of Corruption Prevention said:

“As domestic anti-corruption efforts intensify, corrupt officials flee abroad and remain at large by taking advantage of legal differences between our jurisdictions…this is a serious challenge to each economy’s rule of law. By building a multilateral platform to strengthen work-level exchange and case cooperation, and expand channels for anti-corruption and law enforcement partnership, we could cut off the escape route of corrupt fugitives.”


Regarding the above-referenced New Zealand bill, it – like the FCPA-like laws of many other OECD member countries that recognize corporate criminal liability – contains compliance-defense concepts.  Specifically, the bill states:  ”a body corporate or corporation sole does not commit an offence … if it has taken reasonable steps to prevent the offence.”

Checking In Down Under

Wednesday, April 23rd, 2014

Today’s post is from Robert Wyld (Partner, Johnson Winter & Slattery).  Wyld is the Australia Expert for FCPA Professor.


This update covers a range of important developments in Australia and overseas in the area of foreign bribery policy, investigations and regulation in the first quarter of 2014.

The key issues that are covered in this Update include:

  • Australia’s address to the G20 Anti-Corruption Roundtable
  • The Australian Securities and Investment Commission (ASIC) and whistleblower protections
  • ASIC and civil penalties
  • Australian foreign bribery investigations and prosecutions – media updates
  • Asia Pacific developments

Australia and the G20 Anti-Corruption Roundtable

The Australian Government has been remarkably quiet in the foreign bribery space. A Consultation Paper into whether facilitation payments should be abolished (published in November 2011) appears to have died an unfortunate death by inertia.

It was refreshing to read that the Attorney General, George Brandis QC, in delivering his opening address to the G20 Anti-Corruption Roundtable, made it clear that corruption is and remains one of the greatest barriers to global growth and that all governments must address the systemic problems flowing from corruption.

The Attorney General highlighted three specific issues that warranted close attention by the Roundtable group – judicial integrity, foreign bribery and the transparency of legal structures, and the identity of beneficial owners. While little was said on the detail, it is encouraging to see the topic of foreign bribery (whatever that entails) is firmly on the agenda while Australia chairs the G20 in 2014.

ASIC and Whistleblower Protections

On 18 February 2014, ASIC published its Information Sheet No. 52 entitled ‘Whistleblowers and whistleblower protection’. ASIC’s responsibilities are to regulate companies acting in contravention of the Corporations Act 2001 (Cth) (Act). ASIC’s focus is on conduct which is disclosed to it which involves a potential contravention of the Act. The Act provides a statutory framework to protect whistleblowers (see Pt9.4AAA, sections 1317AA to 1317AE).

The key elements under the statutory whistleblower protection regime that must be satisfied are:

  • the whistleblower must be an officer or an employee of the company or a contractor or employee of a contractor which has a current contract to supply goods or services to the company the disclosure is about;
  • the disclosure must be to the company’s auditor, a director, secretary or senior manager within the company, a person authorised by the company to receive whistleblower disclosures or ASIC;
  • the whistleblower must identify himself when making the disclosure;
  • the whistleblower must have reasonable grounds to suspect that the information disclosed indicates the company or company officers may have breached the Act (or ASIC’s Act); and
  • the whistleblower must make the disclosure in good faith.

The tenor of ASIC’s approach is that it still has limited resources, it prefers to focus on the disclosed conduct and it keeps emphasising that a whistleblower should seek independent legal advice. ASIC has been criticised in the past for responding very slowly at times to significant complaints. ASIC will now appoint a dedicated Liaison Officer to be in regular contact with the whistleblower. While a whistleblower may have protection from victimisation, any complaint about how a whistleblower is treated is a private matter between the whistleblower and the company.

In an Ethics Conversation hosted by the St James Ethics Centre in Sydney on 8 April 2014, the ASIC Chairman, Greg Medcraft indicated that while the protection of whistleblowers was important, he appeared less enamoured of the US whistleblower bounty scheme established under the US Securities Exchange Act. Mr Medcraft felt that such a scheme sat uncomfortably with the Australian culture of “not dobbing in a mate”. At the same event, Rod Sims, the Chairman of the Australian Competition & Consumer Commission, was concerned about how Australian courts might treat an individual who had a financial interest in a prosecution and the impact that might have on a whistleblower’s overall credibility. Perhaps the pioneering research work of Prof AJ Brown at Griffith University might help to debunk the myth of not dobbing in a mate – and encourage regulators to realise that the vast majority of Australians consider that whistleblowers who report serious misconduct should be both praised and protected. It remains to be seen how ASIC will act in the future towards whistleblowers.

ASIC and Civil Penalties

In March 2014, ASIC published its Report No. 387 entitled ‘Penalties for corporate wrongdoing’ which considered the penalties available to ASIC and whether they were proportionate and consistent with those for comparable wrongdoing in selected overseas jurisdictions. The key findings of the Report were as follows:

  • ASIC rated effective enforcement as critical to achieving its strategic priorities of fair and efficient financial markets with a range of penalties designed to deter contravention and promote greater compliance;
  • in relation to imprisonment and fines open to ASIC to seek through litigation: the maximum fines are broadly consistent with other comparable jurisdictions save for the US; other jurisdictions have greater flexibility to impose higher non-criminal fines; other jurisdictions can seek the disgorgement of profit generated by the wrongdoing,
  • within Australian legislation, there are examples where non-criminal fines can be imposed at a much higher amount than those available to ASIC.

ASIC has called for greater penalties to be available to it for corporate wrongdoing. While ASIC made it clear that it will pursue the sanctions and remedies best suited to each case on its merits, Mr Medcraft made it clear at the St James Ethic Centre Conversation that he wanted to target individuals as it was only through “scaring the hell out of people” faced with imprisonment, that he believed commercial behaviour might, in fact, change.

Australian Foreign Bribery Investigations and Prosecutions – Media Updates

The Securency banknote printing corruption prosecution continues to roll on slowly in Victoria. While the whole process is subject to suppression orders in Victoria, it is hoped significant public progress in the case occurs during 2014.

The Australian media has continued to follow the saga of an AFP investigation into the Middle East business activities of Leighton Holdings, its various entities and senior officers. While no criminal prosecution has occurred, the opening salvos in a securities class action in Victoria concerning non-disclosure to the market between aggrieved Leighton shareholders and the company suggests the case will continue to affect the company, currently under new Spanish management.

Asia Pacific Developments

The Asia Pacific region is home to both many of the world’s most active economies and to those where the perception of systemic corruption is the greatest.

Developments in China, as one of Australia’s most significant trading partners, must be followed. From mid-2013, the Chinese Government started to target multinational companies in the pharmaceutical sector, in the “supply side” of corruption rather than its traditional focus on the “demand side” of corruption, being the local Chinese public official. This must ring warnings to all Australian business that they are not immune from Chinese Government investigation.

In addition, the role of the US – China Joint Liaison Group on Law Enforcement, may yet see an increase in parallel US and China investigations, although human rights issues may see such investigations undertaken only in limited cases.

In the Asia-Pacific Economic Cooperation (APEC) Bali Declaration in late 2013, APEC called for greater regional cooperation on corruption and collaboration between regulators. A new regional authority is to be established, called the APEC Network of Anti-Corruption Authorities & Law Enforcement Agencies (ACT-NET). The goal of this agency is to, in part, “encouraging private sector stakeholders to implement APEC’s high standard principles for codes of business ethics”.

At the meeting of the APEC Anti-Corruption and Transparency Working Group held in Ningbo in China in February 2014, members agreed to further discuss ACT-NET’s development and implementation during 2014. The goal of the ACT-NET was said to advance greater collaboration among law enforcement authorities in combating corruption, bribery, money laundering, and illicit trade.. Future meetings of ACT-NET will take place during 2014.