AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
4.5 Safe Harbour or Amnesty Programme There is no formal safe harbour or amnesty pro - gramme in Australia based on self-reporting or the existence of adequate compliance proce - dures 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 .
While Australia had been considering removing the facilitation payment defence for some time, it was retained in the Combatting Foreign Bribery Act. Nonetheless, Australian authorities recom - mend avoiding such payments, given that they are often difficult to distinguish from bribes. In respect of the new failure to prevent foreign bribery offence, Section 70.5A(5) of the Criminal Code provides that this offence will not apply if the body corporate demonstrates it had ade - quate procedures in place to prevent the com - mission 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 pros - ecutions, pursuant to the Prosecution 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 exercise its discretion to dismiss a case if the offence is of a trivial or merely technical nature. 4.4 Exempt Sectors/Industries No sectors or industries are exempt from the offences referred to in 2.1 Bribery , 2.3 Financial Record-Keeping and 2.4 Public Officials .
5. Penalties for Violations 5.1 Penalties on Conviction
The maximum penalties on conviction for foreign or domestic bribery offences (and for compa - nies, the failure to prevent offence) are signifi - cant: • for an individual: (a) ten years’ imprisonment; or (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 determined, 10% of the company’s annual turnover for the 12 months up to the end of the month in which the con - duct constituting the offence occurred. For the false accounting provisions, the maxi - mum penalty for intentional conduct is the same as above, while reckless conduct attracts a max - imum 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.
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