AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
the Corporations Act will be guided by, among oth - er things, whether or not they can establish a suffi - cient jurisdictional nexus based on the requirements referred to in 3.2 Geographical Reach of Applicable Legislation . In circumstances where an offence such as foreign bribery typically involves conduct occurring overseas, evidence of which must be properly obtained to sup - port a prosecution, Australian enforcement agencies may seek mutual assistance from overseas authorities under the Mutual Assistance in Criminal Matters Act 1987 (Cth). 7.4 Discretion for Mitigation and Aggravation Unlike in the UK and the USA, Australian enforcement agencies have fairly limited discretion for mitigation in enforcing their powers. This is largely due to the fact that there is not any equivalent deferred prosecution or non-prosecution agreement regime in Australia. Relevant Mitigating Factors Generally, an offender who discloses that they have engaged in criminal conduct will still be prosecuted subject to there being a prima facie case, reasonable prospects of conviction and that it is in the public interest to prosecute. Nonetheless, the accused can expect to receive a significantly moderated sentence because pleading guilty, providing assistance and showing contrition or remorse (including by making reparation for any injury, loss or damage caused) are all mitigating factors taken into account in the sen - tencing process. Various legal mechanisms are found in published prosecution policies (including the Prosecution Pol - icy), guidelines and conventions, as well as statutes, which can apply to persons who voluntarily disclose their criminal conduct. This includes the granting of immunity from prosecution in extraordinary circum - stances, or the investigating authority accepting an induced witness statement which cannot be used against the deponent. Pre-Trial Diversion Process There are currently no legal mechanisms for a pre-trial diversion process or a deferred prosecution in Austral - ia. A deferred prosecution agreement (DPA) scheme
for certain serious corporate crimes (including foreign bribery), which would no doubt incentivise self-report - ing, was proposed by the Federal Opposition as an amendment to the Combatting Foreign Bribery Act. While the government considered it would be “pre - mature” to introduce now, it foreshadowed revisiting the position in due course. 7.5 Recent Landmark Investigations or Decisions According to the OECD’s 2022 Additional Written Follow-up Report to its Phase 4 report on Australia (see 9.1 Assessment of the Applicable Enforced Legislation ), at the reporting time of November 2022, Australia had two foreign bribery matters before the courts, two matters in which briefs of evidence had been referred to the CDPP for evaluation of poten - tial charges, and four matters in which charges were being actively considered. It also reported that the AFP had 21 ongoing foreign bribery investigations (inclusive of matters before the courts), of which nine were new matters opened since December 2021. No updated statistics have subsequently been released. The majority of the prosecutions commenced in Aus - tralia to date under foreign anti-bribery laws have been prosecutions of individuals, rather than companies. While this trend is expected to continue, companies will also continue to be prosecuted in appropriate cas - es. Frequently, associated false accounting charges have been brought in parallel to the bribery prosecu - tions, against individuals who sought to disguise or conceal the true nature of the bribes. As of 1 October 2025, the NACC had three matters before the court, involving corruption, theft and money laundering offences against a member of the AFP, the misuse of sensitive taxpayer information by a former ATO employee, and the alleged receipt of a bribe by an Australian Border Force employee. A further 33 preliminary investigations and 38 corruption investi - gations were underway. While it is difficult to obtain reliable data on the ongo - ing bribery and corruption investigations in Australia, the most notable Australian enforcement actions in the anti-bribery and corruption space include the fol - lowing.
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