AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
the company’s self-report, guilty plea and exten - sive assistance provided to the authorities. • In July 2021, former NSW Minister for Mineral Resources, Mr Ian Macdonald, Mr Eddie Obeid (another former NSW Minister) and his son, Mr Moses Obeid, were found guilty of conspiring to commit misconduct in public office. The convic - tions concerned a conspiracy that Mr Macdonald would wilfully misconduct himself as Minister by acting in breach of his ministerial duties of confi - dentiality and impartiality in connection with the grant of a coal mining exploration licence in the Bylong Valley, where the Obeid family owned a rural property, for the improper purpose of benefit - ting the Obeids and others associated with them. Mr Macdonald was sentenced to nine-and-a-half years’ imprisonment, Mr Eddie Obeid to seven years, and Mr Moses Obeid to five years. • Following a lengthy AFP investigation into the conduct of subsidiaries of Leighton Holdings Ltd (now known as CIMIC) triggered by the company’s self-report in 2011, Mr Russell Waugh, the former Leighton Offshore Pty Ltd managing director, was charged in late 2020 in relation to alleged foreign bribes paid via third-party contractors to secure approvals for two oil pipeline contracts with Iraq Crude Oil Export in 2010 and 2011, and in respect of a separate infrastructure contract in Tanzania. Charges have also been laid against a second former Leighton executive, Mr David Savage, for knowingly providing misleading information. • In September 2022, two former employees of the SMEC engineering group were arrested and charged with conspiracy to commit foreign bribery in relation to projects in Sri Lanka. It was alleged that between 2009 and 2016 the men conspired to arrange the payment of more than AUD304,000 to foreign government officials to win contracts for the supervision of two infrastructure projects in Sri Lanka worth over USD8,8 million. However, the CDPP withdrew the charges in May 2023 whilst the proceedings were still at the early committal stage. • In August 2023, an Australian mining company, Oz Minerals Ltd, which had self-reported and been investigated by the AFP in relation to alleged for - eign bribery, agreed to (civil) confiscation orders to the value of at least AUD9.3 million. The allegations concerned the actions of employees of a foreign
subsidiary that may have bribed foreign officials to obtain mining rights in Cambodia between 2006 and 2009. This is the first resolution of a foreign bribery matter in Australia by way of consent orders under the POCA. • In September 2024, the AFP dropped its long-run - ning investigation into mining company Sundance Resources, which had been accused of bribing government officials in the Republic of Congo between 2006 and 2008. The matter was reported upon sensationally in the press when the AFP’s investigation commenced. However, the AFP announced that its investigation “did not establish sufficient, admissible evidence to refer a brief of evidence to the [CDPP]”, illustrating the difficulties Australian authorities face in gathering admissible evidence to prove foreign bribery offences (particu - Although there has been a steady increase in the lev - el of enforcement action for bribery and corruption offences in recent years, in particular foreign bribery, there is still some way to go. Bolstering the resourc - es and abilities of the specialist foreign bribery team within the AFP will assist, as will the reforms enacted under the Combatting Foreign Bribery Act. larly prior to the 2024 amendments). 7.6 Level of Sanctions Imposed Under Australian law, the corporate criminal respon - sibility provisions are structured to encourage com - panies to have sound compliance programmes. This is because, if an employee, officer or agent engages in the relevant conduct, the company may potentially be held liable if, among other things: • it had a corporate culture that directed, encour - aged, tolerated or led to non-compliance with the relevant provision; or • the employee, officer or agent was a “high mana - gerial agent” and the company failed to exercise due diligence to prevent their conduct. 8. Compliance Expectations 8.1 Compliance Obligations
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