Anti-Bribery & Corruption
Foreign Bribery Investigations
Foreign bribery is bribery of a foreign public official, namely an employee of a foreign government or a politician or judge of a foreign country. It is a serious criminal offence under Australian law.
The offence of bribing a foreign public official is contained in section 70.2 of the Criminal Code (Cth). It is an offence to offer, promise or provide any benefit to a foreign public official with the intention of influencing them or any other foreign public official to gain business, or a business advantage, that is not legitimately due.
The offence applies to conduct occurring in Australia as well as to conduct outside Australia where the conduct is committed by a person who is an Australian citizen or resident or is a body corporate incorporated under Australian law.
Our expert team of lawyers and investigators can assist clients to investigate bribery and corruption allegations identified either as a result of internal reviews or because of inquiries from regulators. We can help clients identify the best path forward and whether they may need to consider self-reporting to the Australian Federal Police (AFP) in accordance with the AFP’s best practice guidelines.
Duxton Hill also advises and represents persons and organisations the subject of investigations by the AFP, ASIC or other agency in relation to foreign bribery and corruption.
Our experience includes:
- Leading the financial investigation of Australia’s first successful foreign bribery prosecution, involving charges of conspiracy to commit foreign bribery in Indonesia, Malaysia, Nepal and Vietnam.
- Our founder Andrew Tragardh was in the team that represented former Senior Executive of AWB Ltd, Peter Geary in Supreme Court proceedings where ASIC alleged he breached the Corporations Act by allowing AWB to circumvent the sanctions regime under the UN Oil for Food Program when supplying wheat to the Government of Iraq. The Court dismissed ASIC’s claim as it found Mr Geary acted honourably and with honesty.
Duxton Hill advises and represents persons and organisations the subject of investigations and hearings before State and Federal anti-corruption commissions, including the Independent Broad-based Anti-corruption Commission and the National Anti-Corruption Commission.
With our extensive knowledge of anti-corruption procedures and deep experience in dealing with agencies such as IBAC, Duxton Hill is perfectly positioned to provide invaluable assistance for any investigation.
Our highly experienced anti-corruption team includes Tam McLaughlin, (formally Principal Lawyer at IBAC) and Andrew Tragardh, who has successfully challenged the publishing of adverse material in an IBAC special report in the Supreme Court.
Independent Broad-based Anti-corruption Commission
The Independent Broad-based Anti-corruption Commission (IBAC) is the Victorian agency responsible for investigating, exposing and preventing public sector corruption and police misconduct.
IBAC has the power to investigate State government departments and agencies, local councils, police, members of Parliament and non-governmental organisations providing services on behalf of the State. In addition to public sector employees, IBAC can also investigate any person that seeks to adversely effect the honest performance of a public employee’s duties, such as by offering them a bribe or conspiring to undermine a public tender process.
In conducting its investigations, IBAC has the power to:
- require the production of documents via summons or search warrant,
- use surveillance devices and telephone interception, and
- compel witnesses to appear at private and public examinations.
As a result of its investigations, IBAC may refer matters to another body such as a department or local council for internal investigation or disciplinary action or bring criminal proceedings themselves relating to any matter arising out of the investigation.
IBAC may also publish public reports containing its findings in relation to an investigation but must give procedural fairness to individuals or agencies who will be the subject of adverse opinions or findings in the report.
National Anti-Corruption Commission
The National Anti-Corruption Commission (NACC) has jurisdiction to investigate corruption across the Commonwealth public sector, including members of Parliament and their staff, employees and contractors of government agencies and contracted service providers.
The NACC can investigate the conduct of any person that adversely affects, or could adversely affect, the honest or impartial exercise of any Commonwealth public official’s powers or duties. This could include the conduct of a company and its directors or employees regarding their dealings with a Commonwealth public entity.
The NACC has a broad suite of investigative powers, including the power to:
- enter Commonwealth premises and require Commonwealth information without a warrant;
- compel production of documents via notices to produce or search warrant;
- conduct private and public hearings; and
- intercept telecommunications and use surveillance devices.
When an investigation is concluded, the NACC may produce a public report that contains findings of fact, including findings of corrupt conduct. Any findings that could constitute criminal conduct will be referred to the Australian Federal Police or the Commonwealth Director of Public Prosecutions for further consideration.
In March 2023 the Attorney General’s Department published a series of helpful and informative factsheets about the NACC. These can be accessed by clicking on the following link – https://www.ag.gov.au/integrity/publications/nacc-downloadable-resources
Appearing as a witness before an anti-corruption commission
Being summonsed to give evidence before an anti-corruption commission can be an overwhelming and stressful experience for witnesses.
While similar to a court or tribunal, the procedures and practices of bodies such as IBAC and the NACC are unique in the law and require specialised legal knowledge and advice. It is therefore vital that you engage a firm with the relevant experience such as Duxton Hill at the earliest opportunity to understand your rights and obligations.
It is a criminal offence not to attend an anti-corruption hearing when issued with a summons and an offence not to answer questions or produce documents. And unlike when a person is being asked questions by a police officer or judge, you cannot refuse to answer on the grounds that you may incriminate yourself or make yourself liable to a penalty. It is also an offence to give untruthful answers or misleading evidence when questioned or hinder or obstruct an anti-corruption examination or investigation.
As can be seen, there are extremely serious consequences for not complying with the terms of any summons issued by an anti-corruption commission, and a witness needs to know before they appear what to expect in terms of processes, who will be in the room and how they should answer questions put to them. Anti-corruption commissions are not required to give more than the most basic outline of what a witness is going to be asked questions about, so being well-prepared is crucial.
Anti-corruption hearings are usually held in private unless they meet the threshold for being held in public. The attendees at a private hearing are limited to the witness and their lawyer, the examiner (usually a Commissioner or Deputy Commissioner) and staff members of the anti-corruption commission. Witnesses at a private hearing may never be publicly identified unless a public report is released when the investigation is finalised.
In the case of IBAC, a person may also be issued with a confidentiality notice in relation to an investigation. This notice may prevent that person from speaking with anyone other than their legal representative about anything to do with IBAC’s investigation and breaching a confidentiality notice is a criminal offence.
Dealing with anti-corruption commissions is something not to be dabbled in given the seriousness of the issues involved and requires the assistance of a legal team experienced in the law and practice of these commissions such as Duxton Hill.
Internal corruption investigations
We also assist clients to conduct internal investigations into suspected breaches of State or Federal anti-corruption laws.
Local councils, private businesses and charitable organisations may all be the subject of a corruption investigation or have employees or officers under investigation. When this happens, it’s important to investigate the matter thoroughly. This process can be delicate and complicated, but it’s crucial for maintaining a positive reputation and avoiding legal penalties.
Conducting a corruption investigation requires a detailed and organised approach. The process begins with the collection of evidence, which may come from various sources such as interviews, financial documents, or digital searches. This evidence must then be accurately assessed and evaluated against relevant legislation and internal guidelines to determine whether any corrupt conduct has occurred and what next steps may be required to be taken.
Finally, if warranted, Duxton Hill can advise on whether internal disciplinary action should be taken or perhaps even a formal notification be made to the relevant authority. Throughout this process, it is important that investigators understand the underlying purpose and context of corruption enquires and the legal frameworks involved. This is where Duxton Hill’s specialised knowledge of anti-corruption actions and deep experience in dealing with agencies such as IBAC come to the fore.