AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
6. Disclosure Processes 6.1 Disclosure Obligations
ate what charges should be proceeded with. However, agreements on sentence are not enforceable or bind - ing upon a sentencing court, which ultimately has the discretion to determine the appropriate sentence. This places a significant constraint on a defendant’s ability to plea bargain. In Barbaro v the Queen (2014) 253 CLR 58, the High Court confirmed that the prosecu - tion is not required, and should not be permitted, to proffer even a sentencing range to a sentencing judge. Charge bargaining, on the other hand, is common. 6.4 Protections Afforded to Whistle-Blowers To strengthen the protection afforded to whistle-blow - ers in Australia, new private sector whistle-blower laws came into effect in July 2019. Protection Under the Corporations Act The regime, contained in Part 9.4AAA of the Corpo - rations Act, significantly expanded and strengthened private sector whistle-blower protections, increased applicable penalties and introduced a requirement for public companies and large proprietary companies to have a whistle-blower policy addressing certain mat - ters. Importantly, protected disclosures are no longer lim - ited to potential contraventions of the corporations legislation, but now extend to disclosures where the whistle-blower has reasonable grounds to suspect that the information concerns misconduct, or an improper state of affairs or circumstances, in relation to the relevant company or a related body corporate. This specifically includes conduct by the entity, or one of its employees or officers, that constitutes an offence against a law of the Commonwealth punish - able by imprisonment for a period of 12 months or more, thus including the Commonwealth domestic and foreign bribery offences. Where certain criteria are met, a whistle-blower will receive protections in relation to the confidentiality of their identity and in relation to victimisation. The penalties for breach of these protections have been significantly increased. The maximum civil penalty for companies, for example, is now the greater of AUD16.5 million, three times the benefit derived from the contravention, or 10% of annual turnover (up to a maximum of AUD825 million). It is also now easier
As a general rule, there is no requirement for individu - als and/or companies to disclose violations of Aus - tralia’s anti-bribery and corruption laws. However, there are certain exceptions. For example, in NSW, it is an offence under Section 316 of the NSW Crimes Act for a person, including a company, who knows or believes that another person has committed a serious indictable offence, to fail without reasonable excuse to report that matter to the NSW Police. Additional requirements also exist with respect to public disclosures of political donations in the Com - monwealth, states and territories. Failure to report political donations may evidence corrupt or dishon - est intentions for the purposes of domestic bribery offences. 6.2 Voluntary Disclosure Incentives While the AFP encourages self-reporting of foreign bribery, there remain limited incentives to do so. The CDPP and the AFP jointly developed a Best Prac - tice Guideline on Self-Reporting of Foreign Bribery and Related Offending by Corporations, in an effort to incentivise self-reporting. This guideline identifies public interest factors the CDPP will take into account when deciding whether or not to prosecute a self- reporting corporation, or how the self-report will be taken into account in any future prosecution. Further supplementary guidance on self-reporting and corpo - rate co-operation was published by the AFP in 2021. However, these policies do not offer much certainty or comfort for those who may be considering self- reporting. 6.3 Self-Disclosure Procedures The formal decision as to whether or not relevant charges should be laid, either against individuals or a company, is made by the CDPP (or its state/terri - tory counterparts, where relevant) in accordance with its Prosecution Policy, often following a referral by an Australian enforcement agency. Prosecution policies and guidelines provide a founda - tion for the prosecution and the defendant to negoti -
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