Foreign bribery

Submission 37

Public Submission
Senate Economics References Committee Inquiry into Foreign Bribery

BHP Billiton welcomes the opportunity to make this submission to the Senate Economics References
Committee Inquiry into Foreign Bribery. We are committed to contributing to the global fight against
corruption and working with businesses, governments and civil society in partnership to support this
effort.
We set out below:

in Section A, background on our anti-corruption compliance efforts, both internally and within our
industry; and

in Section B, our submissions on a number of the specific issues raised under the Committee's
Terms of Reference.

A.

Background

Our operations
BHP Billiton is a leading diversified resources company with a global footprint. Our workforce currently
comprises approximately 80,000 employees and contractors, working in numerous countries around the
world. We are among the worlds top producers of major commodities including iron ore, metallurgical
and energy coal, conventional and unconventional oil and gas, and copper.
Our anti-corruption approach
A culture of compliance begins with a commitment to ethical conduct on the part of all employees. This is
embodied in our Charter, introduced in 1999, and our Code of Business Conduct (Code), introduced in
1997.1
Our Code prohibits all forms of corruption and bribery, including expressly prohibiting facilitation
payments. We also prohibit political contributions in cash or in-kind anywhere in the world.
Our zero-tolerance to bribery and corruption, set out in our Code, is implemented through our extensive
anti-corruption compliance program. The key components of the program are set out below and on our
website: http://www.bhpbilliton.com/society/operatingwithintegrity/anti-corruption:
1.

Anti-corruption procedure: in addition to our Charter and the Code, we have a specific anticorruption procedure which sets out mandatory requirements to identify and manage the risk of
anti-corruption laws being breached. In particular, the procedure requires mandatory pre-

Our Charter and our Code are available on our website at

http://www.bhpbilliton.com/aboutus/ourcompany/codeofbusconduct and
http://www.bhpbilliton.com/aboutus/ourcompany/codeofbusconduct.

September 2015

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approval by the Compliance function (discussed below) for higher risk business activities,
including:

2.

offering gifts, travel and hospitality or any other thing of value above the following
thresholds:

offering or giving a gift to any person with a value greater than US$50;

offering or giving a meal or entertainment with a value greater than US$125 (for a
government official), or greater than US$250 (for a private individual); and

offering or providing travel or accommodation with a value of US$50 or greater

(subject to a limited exception for ground transport to BHP Billiton sites);

offering commercial sponsorships, community donations or projects;

engaging third parties who interact with others on our behalf (who we call business
partners). A risk-based system is used to assess business partners and satisfy due
diligence and other compliance requirements prior to approval; and

entering joint ventures or co-investments. Acquisitions and divestments also require

review by the Compliance function.

If pre-approval is required, employees must complete a form which is reviewed by Compliance.

The form seeks information relevant to the corruption risks associated with the proposed offer.
The Compliance team reviews all of this information and conducts due diligence before deciding
whether to approve the proposal. Records of approval and the reasoning must be retained.
Factors taken into account in considering whether to approve a proposed offer include whether
the recipient has received any other benefit in the last six months, whether there is a legitimate
business purpose and whether the value is appropriate in all the circumstances. If the required
approval is not obtained, the offer cannot be made.
Each BHP Billiton Business President, as well as the Chief Legal Counsel and the Chief
Compliance Officer, must report every six months to the Risk and Audit Committee (RAC) of the
Board and to the Group Management Committee on compliance with the requirements of the
anti-corruption procedure and the adequacy of resources to achieve and maintain compliance
with this procedure.

3.

Independent Compliance function: In 2011, we established an independent Compliance

function which plays a key role in advising, monitoring and reporting on the implementation of our
anti-corruption program throughout the Company. The Compliance function also manages
investigations into all potential corruption-related issues. The Compliance function includes
Compliance teams which are co-located with each of our Businesses and a Compliance Legal
team comprising lawyers with expertise in anti-corruption and trade law compliance. The
Compliance function is independent of our Businesses and reports directly to the Chief Legal
Counsel and the RAC.

4.

Anti-corruption financial controls: Our policies include a prohibition on the use of cash as a
payment method throughout the Company, unless approved by the BHP Billiton Chief Financial
Officer. We also have a tailored anti-corruption audit plan executed by an independent internal
audit function (see below). These finance-related controls have been facilitated by our single
master data system and the ability to designate sensitive payment accounts for additional
monitoring.

5.

Anti-corruption risk assessments: All BHP Billiton Businesses are required to conduct regular
anti-corruption risk assessments in co-ordination with the Compliance function. These risk
assessments form a critical part of the compliance program, as they ensure that resources are
focused on the highest areas of risk, and that appropriate anti-corruption controls are adopted to

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mitigate these risks. Importantly, individual accountability for implementation of controls is

assigned via the risk assessment process.
6.

Code and Anti-corruption training and certification: We require annual training for all
employees and contractors on the Code which, as stated above, prohibits all forms of bribery and
corruption. An annual certification is provided to our CEO by each Business and Corporate
function confirming that this training has been completed and that it has been communicated to
all employees and contractors that operating in line with our Charter values and our Code is
fundamental to our success and a condition of employment. In addition, we conduct extensive
anti-corruption training through our Compliance function, with thousands of employees across all
of our locations undertaking this training. Training is also required for higher risk business
partners. In conducting training, we use a combination of online and in-person training in the
local language.

7.

Independent monitoring and audit: The Compliance function conducts regular monitoring of
financial and other data to check the operation of key controls, such as the requirement to obtain
pre-approval before engaging in higher corruption risk transactions and compliance with training
requirements. In addition, a separate independent, internal audit team conducts regular anticorruption audits to assess implementation of anti-corruption controls and to identify transactions
and conduct that are not consistent with BHP Billitons policies, standards and procedures. For
FY16, anti-corruption and business conduct audits account for 326 days of planned effort across
BHP Billiton.

8.

Confidential reporting and investigations: Reporting suspected corruption issues or concerns

is encouraged at BHP Billiton. Reports can be made in a number of ways, including through a
global anonymous helpline, EthicsPoint, introduced in 1998 and run by an independent third
party. The helpline, which can be accessed by telephone or email, provides multi-lingual 24/7
support to raise concerns or ask questions, and can be accessed anonymously. Any information
provided through EthicsPoint is stored on a secure site and an initial response is provided within
2-3 days. Individuals who raise queries or concerns are also provided with a report key which
allows them to access the case to review progress of their concern. Our Code expressly prohibits
any retaliation against someone who speaks up and reports an issue through EthicsPoint or any
other means. Information regarding EthicsPoint is available on our website:
https://secure.ethicspoint.com/domain/media/en/gui/23435/faq.pdf.
The Compliance function manages investigations into all potential corruption-related issues,
whether these are reported through EthicsPoint or through other channels.

9.

Ongoing review and enhancement: Regular review of the design of the anti-corruption
compliance program is undertaken using the results of monitoring, audits and investigations to
make appropriate enhancements, as well as external benchmarking to ensure best practice.

In developing our anti-corruption program, we have considered the requirements of the multiple
jurisdictions in which we operate, and adopted the highest standard where there are inconsistencies.
We also continually review and test our compliance program to ensure best practice. Building on a
strong framework established over time with a focus on continuous improvement, we have what we
consider to be a world-class anti-corruption compliance program.
Importantly, our position on anti-corruption is led by our senior management and the Board of Directors
who emphasise (a) their commitment to operating with integrity, (b) their support for anti-corruption
training and controls, and (c) that we are all measured on how we achieve results, not simply the results
themselves like safety, implementation of our compliance program is one of the measures against
which the performance of each of our business groups and our leaders are assessed.
Lessons from US and Australian investigations
As noted above, our anti-corruption compliance program has evolved over time in response to external
and internal developments and learnings.

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Submission 37

Recently, we were involved in investigations by the US Department of Justice (DOJ) and the US
Securities and Exchange Commission (SEC), and there is an ongoing investigation by the Australian
Federal Police (AFP).
The SEC and DOJ investigations related primarily to previously terminated minerals exploration and
development efforts as well as hospitality provided at the 2008 Beijing Olympic Games. Following an
extensive, almost six year investigation, the DOJ took no action.
The SEC investigation also ceased after almost six years. The SECs findings, in a civil administrative
order, were limited to the hospitality program hosted by BHP Billiton which supported its sponsorship of
the 2008 Olympic Games. As part of this hospitality program, BHP Billiton invited customers, suppliers,
business partners and government officials, along with employees, to the 2008 Olympic Games.
While BHP Billiton made efforts to address the risk related to inviting government officials to the
Olympics, the controls we had in place at the time were insufficient to satisfy the civil books and records
and internal accounting controls requirements of the US Foreign Corrupt Practices Act 1977 (FCPA).
The SEC made no findings of bribery or corrupt intent against BHP Billiton, or any employees, in relation
to invitations issued to government officials or the hospitality program more generally.
In 2007 and 2008, when hospitality applications were completed for the 2008 Beijing Olympic Games,
we did not have an independent Compliance function. As indicated above, we have since created this
function, which reports to our Chief Legal Counsel and the RAC. Today, this function would be required
to approve any proposed offer of hospitality of this kind to a government official.
The US investigations and ongoing AFP investigation have provided significant learnings, and our anticorruption compliance program and culture have been enhanced and are stronger as a result. The SEC
noted, at the conclusion of its investigation, the significant remedial actions we had taken to enhance
our compliance program.
A copy of our release on the conclusion of the US investigations is enclosed and available on our
website: http://www.bhpbilliton.com/investors/news/bhp-billiton-announces-end-of-us-investigations.
Commitment to anti-corruption initiatives at an industry level
Consistent with our commitment to ethical business behaviour, we participate in a number of industry
and international initiatives aimed at reducing levels of corruption in particular locations or industries, for
example, participating in the Committee Against Facilitation Payments in Indonesia, the Maritime AntiCorruption Network and the Anti-Corruption Leadership Group Steering Committee for the UN Global
Compact Network in Australia.
We also regularly engage with suppliers and businesses in the resources industry and other industries
on anti-corruption issues, and support the work of Transparency International. Like many other multinational companies, it is important to us that our suppliers share our commitment to operating with
integrity and have adequate systems and processes in place to meet this commitment.

B.

Submissions on Committees Terms of Reference

We support the important steps the Government has taken to strengthen Australias approach to
prevention of foreign bribery. This includes the recent amendments to Division 70 of the Criminal Code
Act 1995 (Cth) (Criminal Code) confirming it is unnecessary to prove an intention to influence a particular
foreign official to establish bribery, as well as the establishment of the Fraud and Anti-corruption Centre
to promote inter-agency collaboration.
We support further reforms which would increase international consistency in line with the OECD
Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions and
the United Nations Convention Against Corruption. We consider that greater consistency will help align
compliance standards regardless of a companys home jurisdiction and will ultimately assist in the fight
against corruption.

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Submission 37

We set out below further specific comments on the Committees terms of reference.
Culture of Compliance and Guidance
We welcome the recent public discussion, as reflected in statements by the Australian Securities and
Investments Commission (ASIC), in relation to the importance of corporate culture to achieving higher
levels of regulatory compliance. As ASIC Commissioner Greg Tanzer has said, culture:
reflects the underlying mindset of an organisation. It lies at the heart of how an organisation and
its staff think and behave. It shapes and influences peoples attitudes and behaviours towards,
for example, customers and compliance.2
Our Charter values, coupled with our Code, define our expectations of the highest ethical standards for
the Company, our employees, our business partners and our suppliers. We are committed to the
maintenance and continuing enhancement of a compliant and ethical culture.
In the context of Australias foreign bribery legislation, issues concerning corporate culture currently arise
in two important ways, including as an avenue to liability.

First, under s 12.3(2)(c) and (d) of the Criminal Code, a company can be held criminally
responsible for a breach of Australias foreign bribery provisions (along with certain other
Commonwealth laws), if the companys culture directed, encouraged, tolerated or led to the
contravention, or if the company failed to create and maintain a corporate culture of compliance.

Secondly, under s 12.3(2)(b), a company can be held criminally responsible if it is proven that a
high managerial agent of the company intentionally, knowingly or recklessly engaged in the
relevant conduct, or expressly, tacitly or impliedly authorised or permitted the commission of the
offence. However, this does not apply if the company can prove that it exercised due diligence
to prevent the conduct, or the authorisation or permission (see s 12.3(3)). Consideration as to
whether the company has established the due diligence defence clearly raises issues as to the
compliance measures and culture it had in place when the conduct occurred.

In this context, we note, and support, the guidance issued by the Attorney-Generals Department in
2014, through its online foreign bribery learning module, which sets out steps that businesses can take
to help promote compliance.
Guidance has the potential to provide significant assistance to companies in developing effective
compliance programs.
BHP Billiton recognises that when producing guidance, inevitably, there is a tension between the desire
to provide certainty and retaining the flexibility needed to adapt to different situations. We can therefore
see the advantages in any further guidance which is published in Australia adopting a similar approach
to the FCPA Guidance and the UK Bribery Act Guidance by detailing key principles to be followed, rather
than listing prescriptive steps to be taken.
We also recognise that a challenge when producing general guidance for corporates is that it will apply
to companies of different shapes and sizes which operate in diverse industries. We believe this
challenge is sufficiently addressed by providing detailed guidance on how to introduce appropriate riskweighting into the design of anti-corruption compliance programs.
Enforcement options
BHP Billiton supports consideration being given to the introduction of Deferred Prosecution Agreements
(DPAs), Non-prosecution Agreements (NPAs), or other forms of settlements (such as enforceable
undertakings), given their potential to allow investigations to be concluded, where appropriate, in a more
efficient and cost-effective manner.

Greg Tanzer, The importance of culture to improving conduct within the financial industry, Thomson
Reuters Third Australian Regulatory Summit (Sydney, Australia), 27 May 2015.

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We do not view DPAs, NPAs or civil resolutions as a replacement for all corporate criminal prosecutions.
Criminal liability has a critical public role to play in expressing condemnation of illegal conduct, and acts
as a strong deterrent. If a corporate entity commits a serious foreign bribery offence, it is essential that a
just and transparent punishment is imposed on the entity, so that the public interest is served.
To assist the Committee, we offer some brief comments below on DPAs, NPAs and other potential forms
of resolution, with reference to the approach in the US and the UK.
(a) Deferred Prosecution Agreements
DPAs have been a common feature of the US justice system since the mid-1990s, whereas DPAs have
only been permitted in the UK since 2014.
In both jurisdictions the defendant under a DPA is charged, but enforcement action is deferred for an
agreed period of time. Within that period, the defendant is required to meet certain conditions, for
example, payment of a financial penalty, admit to material facts and establish measures to prevent future
offending. If the defendant meets these conditions, the prosecutor agrees that the criminal action will not
be prosecuted and will move to dismiss the filed charges after a period of time.
Common conditions of DPAs in the US include that the corporation must cooperate with investigators on
an on-going basis and develop or appropriately enhance its compliance program. The UK Serious Fraud
Office has also emphasised the importance to the UK DPA regime of unequivocal cooperation from the
corporate.
The requirement for defendants to develop or appropriately enhance their anti-corruption compliance
programs places a welcome emphasis on future prevention of corrupt conduct. When applied to multiple
companies, these measures can collectively make a meaningful contribution to the global fight against
corruption, thereby satisfying a key objective of anti-corruption laws.
(b) Non-Prosecution Agreements and Enforceable Undertakings
In the US, various government agencies including the DOJ and SEC can enter into a contractual
agreement with a company under which the agency agrees not to pursue enforcement action so long as
the company meets certain conditions. Like a DPA, an NPA generally requires a company to meet
certain conditions, including for example waiving the statute of limitations, agreeing to ongoing
cooperation, meeting compliance and remediation obligations and paying a penalty. An NPA may also
include agreement to some form of corporate monitoring or self-reporting. Unlike a DPA, however, an
NPA is not filed with the Court and does not involve the laying of any criminal charge.
NPAs are similar in substance to the enforceable undertakings that ASIC and the ACCC are currently
able to accept. Enforceable undertakings often involve agreements to provide compensation and to
enhance relevant compliance programs, with periodic review by external independent experts.
Enforceable undertakings are published, so they can also be subject to appropriate public scrutiny. ASIC
has recently taken steps to ensure that it can publicise reports about the promisors compliance with the
undertaking and summaries of reports of the independent experts appointed under the undertaking.
Facilitation payment defence
We support the removal of the facilitation payment defence. As noted above, we expressly prohibit
facilitation payments in our Code. We also previously supported the removal of the defence in 2011 as
part of the Governments Public Consultation on Divisions 70 and 141 of the Criminal Code.
We think the availability of the defence can lead to a lack of clarity as to what is and is not permitted in
respect of payments to foreign officials.
We note arguments that removal of this defence would adversely impact the competitiveness of
Australian companies. We do not agree, given:

Facilitation payments are prohibited in current foreign bribery legislation with extraterritorial
application, such as the UKBA;

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Submission 37

Such payments are also not permitted by local law in most countries and therefore, companies
should not be making the payments in any event; and

The defence as it currently stands is limited in scope, applying only to payments of a minor
nature to expedite routine government action and where the payments are recorded in a
companys books and records.

We also consider that any concern regarding the impact on competitiveness can be mitigated through
participation in local multi-stakeholder initiatives which are effective in reducing the demand for
facilitation payments (such as the Committee Against Facilitation Payments in Indonesia), guidance on
measures to prevent requests for facilitation payments, and a reasonable period of time to introduce
systems to minimise the risk of contravention.
Whistleblower protection
BHP Billiton supports the enhancement of legislative protections for private sector whistleblowers.
Whistleblowers play a key role in highlighting unethical or illegal behaviour. It is critical that individuals
who suspect potential wrongdoing feel comfortable to raise concerns, in a timely manner, without fear of
retaliation.
BHP Billiton provides a number of whistleblowing facilities to its employees and business partners,
including an anonymous global helpline, EthicsPoint, and prohibits retaliatory action against
whistleblowers.
Possible enhancements to the current legislative protections were set out in the June 2014 Report of this
Committee titled The Inquiry into the Performance of the Australian Securities and Investments
Commission. Those included:

expanding the definition of a whistleblower in the Corporations Act 2001 (Cth) (Corporations Act)
to include a companys former employees, financial services providers, accountants and
auditors, unpaid workers and business partners;

expanding the scope of information protected by the whistleblower provisions in the Corporations
Act to cover any misconduct that ASIC may investigate; and

bringing protections for corporate whistleblowers into line with public sector whistleblower
protections under the Public Interest Disclosure Act 2013 (Cth).

Legislative reform in line with the recommendations would, in our view, enhance the protections
available for private sector whistleblowers, and has considerable merit.
The Committee's Terms of Reference also include consideration of the introduction of incentives to
report foreign bribery. The Committees 2014 Report recommended, among other matters, that options
be explored for reward-based incentives for corporate whistleblowers. BHP Billiton welcomes debate on
this topic.
The fundamental argument in favour of introducing incentives is, of course, that they have the potential
to increase the rate of whistleblowing. For the reasons given above, any change which would increase
the incidence of whistleblowing must, in principle, be a welcome development. A further potential benefit
is that awareness of whistleblowing mechanisms and protections may also be raised as a result of public
debate or press coverage of developments in whistleblower incentives.
It is, however, not currently clear whether the introduction of incentives will in fact lead to an increase in
whistleblower reports. The UK financial sector regulators recently considered and rejected the
introduction of financial incentives, having conducted research into the use of financial incentives by US
regulators and concluded that (a) "[t]here is as yet no empirical evidence of incentives leading to an
increase in the number or quality of disclosures received by the regulators", (b) such incentives benefit
only a small number of whistleblowers whose information leads directly to enforcement action (whilst

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Submission 37

providing nothing for the vast majority of whistleblowers), and (c) incentives would be unlikely to increase
the number or quality of reports.3 This followed an earlier UK Government paper which also concluded
that incentives should not form an integral part of the UK whistleblowing framework, albeit that they
might be considered in due course in specific contexts (including in respect of bribery), subject to further
consideration of whether incentives would create adverse effects or have unintended consequences in a
particular environment.4
Apart from the question of whether incentives would in fact be effective in encouraging whistleblowers to
come forward, some of the potential risks of introducing incentives (a number of which are canvassed in
the UK regulators' paper) include that:

if financial incentives are triggered by employees making an external report to regulators, the
company's internal whistleblowing policies may be undermined. The incentives may have the
effect of encouraging employees to delay blowing the whistle until wrongdoing becomes more
serious and/or pervasive, in the expectation that the increased seriousness will lead them to
receive a higher financial reward. The company may therefore receive delayed notification of
problems, reducing its ability to detect, reduce and prevent wrongdoing;

the potential for financial reward may encourage individuals to make reports lacking in
foundation. This may lead to law enforcement agencies incurring substantial financial and time
costs in order to establish that the report was baseless. In the meantime, innocent parties may
suffer unnecessary reputational damage; and

if a whistleblower's disclosure were relied upon in subsequent criminal proceedings his or her
reliability may be challenged, due to the witness' financial interest in a conviction.

BHP Billiton believes that further debate on this topic would be valuable.
Private sector bribery
Any form of bribery, whether involving public officials or the private sector, is unacceptable. Our Code
accordingly prohibits all forms of bribery and corruption, including private sector bribery.
There is also existing legislation in all states and territories prohibiting private sector bribery.
There is significant commonality in these regimes in respect of the principal corrupt commission
offences. In each state and territory, it is an offence to corruptly solicit, receive, offer or give a secret
commission as an inducement, reward or valuable consideration for doing any act (or forbearing to do
any act) relating to a principals affairs. The offence of receiving a corrupt commission or reward is
expressed in similar terms in each state and territory.5 Further, a third party who corruptly gives or offers
a benefit or valuable consideration to an agent as an inducement or reward for the agent doing (or
forbearing to do) any act in relation to the principals affairs, commits an offence under the laws of each
state and territory.6

Joint report by the UK Financial Conduct Authority and UK Prudential Regulation Authority, "Financial
Incentives for Whistleblowers", July 2014 (https://www.fca.org.uk/news/financial-incentives-forwhistleblowers).
4
UK Department for Business, Industry & Skills, "Whistleblowing Framework Call for Evidence Government
Response", June 2014
(https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/323399/bis-14-914whistleblowing-framework-call-for-evidence-government-response.pdf ).
5
Crimes Act 1900 (NSW) s 249B(1); Crimes Act 1958 (Vic) s 176(1); Criminal Code Act 1899 (Qld) s 442B;
Criminal Code Act 1913 (WA) s 529; Criminal Code Act 1924 (Tas) s 266(1)(b); Criminal Law Consolidation
Act 1935 (SA) ss 148-149; Criminal Code 2002 (ACT) s 356(2) and s 357(2); Criminal Code Act (NT) s 236.
6
Crimes Act 1900 (NSW) s 249B(2); Crimes Act 1958 (Vic) s 176(2); Criminal Code Act 1899 (Qld) s 442BA;
Criminal Law Consolidation Act 1935 (SA) s 150; Criminal Code Act 1913 (WA) s 530; Criminal Code Act
1924 (Tas) s 266(1)(a); Criminal Code 2002 (ACT) s 356(1) and s357(1); Criminal Code Act (NT) s 236.

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Notwithstanding these similarities, significant differences remain on how offences can be made out, as
well as applicable defences.7 There are also potential difficulties in establishing the jurisdiction over
conduct which occurs wholly outside the relevant state or territory.
Given this, we consider that there is opportunity for greater consistency between the state and territory
regimes, and to resolve potential jurisdictional issues, and we would welcome legislative reform in this
area.
Books and Records / False Accounting
Current Commonwealth and state and territory legislation prohibits inaccurate financial records and
accounting.8
However, as with the private bribery provisions, we consider that there are opportunities for greater
harmonisation between the state and territory provisions, as well as the extraterritorial operation of these
provisions.
We consider that such reforms would further support anti-corruption enforcement.
The economic impact of foreign bribery
As noted above, our Code sets out our view that corruption misallocates resources, reinforces poverty,
undermines the integrity of government, and community decision making and wastes opportunities that
arise from resource development. Contributing to initiatives which aim to eliminate corruption is an
important obligation we have to the communities in which we operate.
We also believe that eliminating corruption is a commercial imperative.
Our strategy is to own and operate large, long-life, low-cost, expandable, upstream assets diversified by
commodity, geography and market. Compliance with anti-corruption laws and transparency initiatives
(such as the Extractive Industries Transparency Initiative, of which we were a founding supporter) are
important enablers of this strategy.
Corruption breeds uncertainty and undermines the rule of law. This threatens the stable operating
environment that is essential to support the major investments we undertake to develop and sustain
multi-decade assets in many locations around the world.
Likewise, a robust anti-corruption compliance program provides us with the confidence to diversify our
portfolio by geography and provides government and other stakeholders with reassurance that we will
operate ethically, in compliance with the law and to the benefit of host communities even in challenging
operating environments.
Our employees value working in a company that is committed to operating with integrity. Recent surveys
have indicated that many people will leave or refuse to join companies that are thought to be involved in

For instance, the secret commission offences are expressly stated to apply to former agents in Victoria,
Queensland, Western Australia and the ACT, but not in New South Wales, South Australia, Tasmania or the
Northern Territory. There are also differences in relation to the existence of associated private corruption
offences (such as the provision of corrupt inducements for advice, or the use or giving of false or misleading
documents), as well as applicable defences.
8
At the Commonwealth level, s 286 of Corporations Act requires companies to keep written financial records
that correctly record and explain their transactions and financial position and performance, and which would
enable true and fair financial statements to be prepared and audited. Breach of this provision is a strict liability
offence. At the State and Territory level, legislation in Victoria, New South Wales, Western Australia,
Queensland and the ACT creates specific criminal offences for false accounting: Crimes Act 1958 (Vic),
s83(1) and s83A; Crimes Act 1900 (NSW), s192F and 192G; Criminal Code Compilation Act 1913 (WA),
ss418, 419 and 424; Criminal Code Act 1899 (Qld), ss430 and 431; Criminal Code 2002 (ACT), s 350.

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Submission 37

bribery and corruption.9 We therefore believe that maintaining an ethical culture and operating with
integrity are competitive advantages in recruitment.
For these reasons, we view our anti-corruption compliance program as essential to operating as an
ethical company and achieving our commercial objectives.
Other related matters consideration of a process akin to the FCPA Opinion Release process
In the US, there is a procedure by which companies can obtain an opinion from the DOJ as to whether
contemplated conduct would conform with the DOJ's anti-bribery enforcement policy under the FCPA.10
This process is known as the FCPA Opinion Release process.
Moreover, the DOJ uses this process as a further form of providing guidance to companies by issuing
releases based on such requests: http://www.justice.gov/criminal/fraud/fcpa/opinion/.
We would welcome a public discussion on whether a similar procedure should be introduced in Australia.
We believe, if operated expeditiously, this procedure has the potential to assist pro-active companies to
navigate through challenging transactions, such as acquisitions, where legacy anti-corruption issues
have been identified.

Ernst & Young Asia-Pacific Fraud Survey 2015, Fraud & Corruption Driving away talent?
(http://www.ey.com/Publication/vwLUAssets/ey-apac-fraud-survey-2015/$FILE/ey-apac-fraud-survey2015.pdf).
10
28 C.F.R. 80.1.

10