SUBMISSION: Deferred Prosecution Agreement Scheme

6 July 2018

The TIA position is that the establishment of a Deferred Prosecution Agreement (DPA) scheme in Australia will only be an effective tool in combating bribery and corruption if it is part of a package of reform measures, and not viewed as a ’get- out-of-jail free’ card by offending corporates.

“Unless the use of settlements for foreign bribery can be seen to be delivering real deterrence and effective sanctions, public confidence across the world in the fight against corruption will be undermined.”

The DPA scheme must be part of a package of reforms to:

  1. Strengthen the present enforcement framework for the offence of bribery of foreign officials making it easier to for law enforcement agencies to prosecute foreign bribery and money laundering offences.
  2. Ensure full implementation of the commitments under the OECD Convention, including full implementation of all OECD Working Group recommendations.
  3. Ensure that where there is proof of bribery of a foreign official by an agent, employee or associate, the organisation itself will also be guilty of an offence unless it can be shown it has an adequate ‘culture of compliance’ and has not condoned such bribes, even implicitly.
  4. Establish clear liability – in other words to provide that when an organisation is guilty of a bribery offence, its complicit directors will be liable where they approved what was happening or cannot show the organisation had an adequate culture of compliance.
  5. Establish whistle-blower protection and reward in the private sector.
  6. Establish a public beneficial ownership register.
  7. Removal of facilitation payment defence – This defence to prosecution should be removed, and guidance given to companies to help them avoid making such payments.
  8. Ensure that sufficient resources continue to be provided to enable the AFP to enforce the laws on bribery of foreign officials.