AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
• In 2011, in what were the first foreign bribery pros - ecutions in Australia, the AFP charged Securency International Pty Limited (“Securency”), Note Print - ing Australia Limited (NPA) and several former sen - ior managers with the offences of bribery of foreign public officials, conspiracy to commit foreign brib - ery and false accounting offences connected with that conduct. The cases arose from allegations by a company insider that Securency had paid nearly AUD50 million to international sales agents to bribe central banking officials in Malaysia, Indonesia and Vietnam in order to secure banknote supply contracts. A series of hearings was run from 2011 to 2018, following which: (a) each company pleaded guilty to three charges of conspiracy to commit foreign bribery, were fined AUD480,000 and AUD450,000 respec - tively, and were separately the subject of pecu - niary penalty orders under POCA amounting to AUD22 million; (b) convictions were obtained against various former employees of Securency, including the CEO, CFO, a senior business development manager, the Indonesian sales agent and a former banknote specialist; and (c) charges against four other individuals were permanently stayed on the grounds that their continued prosecution would bring the ad - ministration of justice into disrepute, after the investigation into their conduct was tainted by unlawful compulsory examinations, to their prejudice. • In 2015, the AFP charged two directors of an Aus - tralian construction company, Lifese, and a third individual, with conspiracy to bribe a foreign public official in connection with building contracts in Iraq. The three men pleaded guilty, with the directors each ultimately sentenced to just over three years’ imprisonment and fined AUD250,000, with the third man sentenced to four years’ imprisonment. • In a series of cases running between 2012 and 2017, ASIC successfully prosecuted a number of former officers and directors of AWB Ltd, Aus - tralia’s largest wheat exporter (at the time), for their involvement in a scheme between 1999 and 2003 by which AWB Ltd rorted the UN’s Oil-for-Food Programme in Iraq. Civil penalties and disqualifica - tion orders were imposed on, amongst others, the
board’s chair and the managing director on the basis that the former had failed to make adequate enquiries into the lawfulness of the scheme, despite the existence of certain red flags, and the latter had failed to inform the board of certain mat - ters, in breach of their duties to the company. • In May 2018, engineering consultancy Sin - clair Knight Merz, now Jacobs Group Australia (“Jacobs”), its former chief executive and other individuals, were charged with conspiring to bribe foreign officials in the Philippines (between 2000 and 2005) and Vietnam (between 2006 and 2012) to secure various infrastructure projects. The charges followed the company’s self-report to the AFP in 2012. The cases concluded with a guilty plea by the company, the acquittal of individuals charged with the Philippines conspiracy, and the discontinuation of proceedings against the second group of individuals in relation to the Vietnam con - spiracy shortly thereafter. Jacobs was sentenced in 2021 to fines totalling AUD1,471,500, incorporat - ing a 25% discount for the guilty plea and a further 40% discount for its extraordinary co-operation and assistance provided to the authorities. In 2023, the CDPP successfully appealed to the High Court of Australia against the fine imposed. The High Court’s judgment provided important guidance on the proper construction of the expression “value of the benefit... obtained” in the maximum pen - alty provision in Section 70.2 (5)(b) of the Criminal Code, holding that the expression should be con - strued broadly to mean the value of any advantage obtained. The court held that Section 70.2 (5) (b) required the value of the benefit obtained to be determined as the sum of the amounts in fact received under the contracts secured by the brib - ery offence (ie, the revenue received), rather than on a “net benefit” basis which took into account the costs incurred in performing the contracts. This interpretation may result in a substantially higher applicable maximum penalty in other foreign brib - ery cases. For Jacobs, it increased the maximum penalty for one of the three offences it plead guilty to from AUD11 million to approximately AUD30,4 million. In August 2024, after the matter was remit - ted by the High Court, the company was ultimately fined AUD3,375 million, after taking into account
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