AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
(“Jacobs”), its former chief executive and other individuals, were charged with con - spiring to bribe foreign officials in the Philip - pines (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 conspiracy shortly thereaf - ter. Jacobs was sentenced in 2021 to fines totalling AUD1,471,500, incorporating 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 penalty provision in Section 70.2(5)(b) of the Criminal Code, holding that the expression should be construed 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 bribery 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 substan - tially higher applicable maximum penalty in other foreign bribery 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 remitted
by the High Court, the company was ulti - mately fined AUD3,375 million, after taking into account the company’s self-report, guilty plea and extensive 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 convictions concerned a conspira - cy that Mr Macdonald would wilfully miscon - duct himself as Minister by acting in breach of his ministerial duties of confidentiality 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 informa - tion. • 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
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