AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
7.3 Jurisdictional Reach of Enforcement Bodies The AFP’s decision to investigate potential offences under the Criminal Code or ASIC’s decision to investigate potential breaches of directors’ duties under the Corporations Act will be guided by, among other things, whether or not they can establish a sufficient jurisdictional nexus based on the requirements referred to in 3.2 Geographical Reach of Applicable Legisla- tion . In circumstances where an offence such as for - eign bribery typically involves conduct occurring overseas, evidence of which must be properly obtained to support a prosecution, Australian enforcement agencies may seek mutual assis - tance from overseas authorities under the Mutu - al 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 discre - tion for mitigation in enforcing their powers. This is largely due to the fact that there is not any equivalent deferred prosecution or non-prose - cution 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 show - ing contrition or remorse (including by making reparation for any injury, loss or damage caused) are all mitigating factors taken into account in the sentencing process.
Various legal mechanisms are found in published prosecution policies (including the Prosecution Policy), guidelines and conventions, as well as statutes, which can apply to persons who vol - untarily disclose their criminal conduct. This includes the granting of immunity from pros - ecution in extraordinary circumstances, or the investigating authority accepting an induced wit - ness 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 pros - ecution in Australia. A deferred prosecution agreement (DPA) scheme for certain serious corporate crimes (including foreign bribery), which would no doubt incentivise self-reporting, was proposed by the Federal Opposition as an amendment to the Combatting Foreign Bribery Act. While the government considered it would be “premature” to introduce now, it foreshad - owed revisiting the position in due course. 7.5 Recent Landmark Investigations or Decisions According to the OECD’s 2022 Additional Writ - ten Follow-up Report to its Phase 4 report on Australia (see 9.1 Assessment of the Applica- ble 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 potential charges, and four matters in which charges were being actively considered. It also reported that the AFP had 21 ongoing foreign bribery investiga - tions (inclusive of matters before the courts), of which nine were new matters opened since December 2021. The majority of the prosecu - tions commenced in Australia to date under for - eign anti-bribery laws have been prosecutions
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