AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
in place to prevent the commission of the offence by an associate. The Adequate Procedures Guidance identifies what the Australian government considers “adequate procedures”. 4.2 Exceptions There are no exceptions to the above-mentioned defences, which are narrowly framed and only apply in specific situations. 4.3 De Minimis Exceptions The Commonwealth legislation does not provide any de minimis exceptions. However, the CDPP will have regard to whether alleged offences are trivial or of a merely technical nature (together with various other factors) when considering whether it is in the public interest to pursue prosecutions, pursuant to the Pros - ecution Policy. Meanwhile, such exceptions are found in some of the state and territory legislation. For example, Section 249I of the NSW Crimes Act enables the court to exer - cise its discretion to dismiss a case if the offence is of No sectors or industries are exempt from the offences referred to in 2.1 Bribery , 2.3 Financial Record-Keep- ing and 2.4 Public Officials . 4.5 Safe Harbour or Amnesty Programme There is no formal safe harbour or amnesty programme in Australia based on self-reporting or the existence of adequate compliance procedures and remediation efforts. However, see the discussion regarding the CDPP and AFP’s joint guidance on self-reporting in 7.4 Discretion for Mitigation and Aggravation . a trivial or merely technical nature. 4.4 Exempt Sectors/Industries
(b) a fine of AUD3.3 million, or both; or • for a company, a fine being the greatest of: (a) AUD33 million; (b) three times the value of any benefit that can be reasonably attributed to the bribe; or (c) where the value of the benefit cannot be deter - mined, 10% of the company’s annual turnover for the 12 months up to the end of the month in which the conduct constituting the offence occurred. For the false accounting provisions, the maximum penalty for intentional conduct is the same as above, while reckless conduct attracts a maximum penalty of half that of those offences. In addition to criminal penalties, any benefits obtained from foreign bribery may be forfeited to the Australian government under the POCA. The maximum penalties that may be imposed for pri - vate sector bribery vary between the states and ter - ritories. By way of example, in NSW, the maximum period of imprisonment for a bribery offence under Section 249B of the NSW Crimes Act is seven years. 5.2 Guidelines Applicable to the Assessment of Penalties Australia has complex legislated sentencing regimes which require each judge, exercising judicial discre - tion, to impose a sentence of severity appropriate to all the circumstances of the offence. This requires consideration of both aggravating and mitigating fac - tors relevant to the specific facts. The same sentenc - ing principles which apply to individuals will apply to a corporation. In particular, general deterrence is an important consideration for the sentencing court. However, Australia does not have the same prescrip - tive sentencing guidelines that exist in other jurisdic - tions (eg, the United Kingdom). There are no guide - lines specific to bribery and corruption offences.
5. Penalties for Violations 5.1 Penalties on Conviction
The maximum penalties on conviction for foreign or domestic bribery offences (and for companies, the failure to prevent offence) are significant: • for an individual: (a) ten years’ imprisonment; or
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