Australia’s Implementation

of UNCAC and OECD

standards
Name of Student: Michael Callan
Student Number: A3458
Overview
 Australia is a federal state with three tiers of government:
Commonwealth (federal), State/Territory, and local.
 In 2010, Australia was the 11th largest economy and 14th largest
exporter of goods and services in the OECD and its largest trading
partner was China.
 Australia is home to some of the largest multinational corporations in
the mining sector. Though there are many small and medium-sized
enterprises (SMEs)
 Over 220 listed exploration and mining companies are active in
Africa and have more projects in Africa than any other region of
the world. Australia’s project investment in Africa was EUR 41.7 billion
 A significant portion of Australia‘s international economic activities
are exposed to risks of foreign bribery.
OECD, 2012
Signatures and Ratifications

 Under section 61 of the Australian Constitution, Australia

entered into the conventions as follows:
Australia UNCAC Convention was signed on 9
December 2003 and ratified by Parliament on 7
December 2005
OECD Convention was signed on 7 December 1998
and ratified on 18 October 1999
Implementation of UNCAC and OECD
Standards
 “In 2012 Australia's implementation of Chapters III
(Criminalisation & Law Enforcement) and IV
(International Cooperation) of the UNCAC was reviewed
and found to be fully compliant.”
(Attorney General Department, 2012)
 Australia considers itself compliant with UNCAC and
OECD standards.
 No report states that explicitly ….
UNCAC Implementation
 Bribery offences; trading in influence (articles 15, 16, 18, 21) ***
 Laundering of proceeds of crime; concealment (articles 23, 24)
 Embezzlement; abuse of functions; illicit enrichment (articles 17, 19, 20, 22)
 Obstruction of justice (article 25)
 Liability of legal persons (article 26)
 Participation and attempt (article 27)
 Prosecution, adjudication and sanctions; cooperation with law enforcement
authorities (articles 30, 37)
 Protection of witnesses and reporting persons (articles 32, 33) ***
 Freezing, seizing and confiscation; bank secrecy (articles 31, 40)
 Statute of limitations; criminal record (articles 29, 41) ***
 Jurisdiction (article 42)
 Consequences of acts of corruption; compensation of damage (articles 34, 35)
(United Nations, 2011)
UNCAC Implementation

 Specialized authorities and inter-agency coordination

(articles 36, 38, 39)
Australian Commission for Law Enforcement Integrity
(ACLEI)
Australian Federal Police (AFP)
Australian Crime Commission (ACC):
Australian Public Service Commission (APS)
The Commonwealth Ombudsman
Fraud and Anti-Corruption Centre
(United Nations, 2011)
OECD Implementation
 The Offence of Bribery of Foreign Public Officials
 Responsibility of Legal Persons
 Sanctions
 Jurisdiction
 Enforcement
 Statute of Limitations
 Money Laundering
 Accounting
 Mutual Legal Assistance
 Extradition
 Responsible Authorities
 Monitoring and Follow-up
(OECD, 2012) (OECD, 2015)
Administrative sanctions

 Public Service Act, 1999

 Public Governance Performance and Accountability Act, 2013
 Proceeds of Crime Act 2002:
 Confiscation of the proceeds and instruments of crime
following a person’s conviction for a Commonwealth
indictable offence;
 A non-conviction-based process
 Pecuniary penalty orders
 Literary proceeds orders
 Unexplained wealth orders

(United Nations, 2011)

Effective Implementation Example

 Public Interest Disclosure Act, 2013 provides a framework to

meet UNCAC s.32, and s.33. The Act has three broad aims:
 To develop a reporting culture
 Investigate all reports of misdoing
 Protect the discloser
 The broad definition of public official
 Two year prison sentence for reprisal against a discloser
 Strong oversight by Ombudsman
 Protections are permanent
 Highly successful to manage difficult issues
Ineffective Implementation Example
 The offence of bribing a foreign public official is contained in
section 70.2 of the Criminal Code Act 1995 (Cth). This is considered
good practice because:
 The broad jurisdiction of the foreign bribery offence applying
transnationally.
 The broad definition of “foreign public official,”
 The money-laundering offences
 Recklessness and negligence provisions
 Australia’s position that no individual is immune, including
parliamentarians.
 The development and expansion of the federal non-conviction-
based forfeiture regime in Australia.
 Forfeiture of the public sector contribution to the convicted
official’s pension fund. (UNCAC 2011)
Ineffective Implementation Example

 The offence of bribing a foreign public official, while good

practice is ineffective as Australia has a steady increase of
corruption investigations but only one sent to prosecution
 There has been no conviction of foreign bribery at this time
 The reasons for this is that the standard of proof required is high,
there is significant challenges in operating in foreign countries,
especially the South West Pacific (MAA issues)
 Australia’s response has been the development and expansion
of the federal non-conviction-based forfeiture regime

(OECD, 2015)
Conclusion

 Australia has had a strong implementation of the OECD and UNCAC

standards
 While there is a strong system, the impact is weak due to the strong judicial
system (High standard of proof – low chance of cooperation)
 Concerns remain, especially within the OECD that implementing the system
while effective in producing the system has produced no substantive
effect.
 This weakness has led to a non-judicial response which is preferred by law
enforcement agencies
No Questions, thanks!
References

 United Nations, UNCAC Implementation Review –Australia, 2011

 OECD, Phase 3 Report on Implementing The OECD Anti-Bribery Convention
In Australia, 2012
 OECD, Australia: Follow-Up to Phase 3 Report and Recommendations, 2015
 Attorney Generals Department, Factsheet – The foreign bribery offence,
undated.