How will DPAs be negotiated in Australia?

The sophisticated nature of corporate crime makes it difficult to detect, and often corporate criminal activity is only identified because ‘whistleblowers’ come forward, or because the company self-reports.

The Australian Government is considering options to facilitate a more effective and efficient response to corporate crime by encouraging greater self-reporting by companies. A key focus of this consideration is a possible deferred prosecution agreement (DPA) scheme.

 

What is a deferred prosecution agreement (DPA)?

A DPA is essentially an agreement negotiated between a prosecutor and a corporate defendant, similar to a “plea deal”.

Offered at the discretion of the prosecution, a DPA would offer the deferral of a prosecution in exchange for compliance with a number of terms and conditions, which may include:

  • Full cooperation with any ongoing investigation.
  • The admission of agreed facts.
  • The implementation of an internal program to promote and ensure future legal compliance.
  • The payment of a fine or penalty.

If the terms of the DPA are breached, the prosecution can reopen and proceed with the case.

 

What are the aims of an Australian DPA scheme?

The primary aim of an Australian DPA scheme is to enhance the accountability of Australian business for serious corporate crime by increasing the range of tools available for investigators and prosecutors to deal with serious corporate crime.

Other aims include:

  • Allowing companies to avoid the reputational damage that could occur as the result of legal action or a conviction. While DPAs would be made public, reporting would show the steps the company was taking to cooperate and address the offending.
  • Punishing companies for wrongdoing and providing an avenue for companies to ‘make amends’, including providing compensation to victims and disgorging illicit profits.
  • Support improved compliance and corporate culture.
  • Contribute towards Australia meeting its international obligations to combat corruption and related criminal conduct.
  • Enable Australia to use DPAs in international settlements in cases of offending by multinationals.

 

Model for an Australian DPA Scheme

In their March 2017 paper ‘Improving enforcement options for serious corporate crime’, The Attorney-General’s Department outlines a proposed model for an Australian DPA scheme. Developed in consideration of the models currently in use in the United States and United Kingdom, the proposed model suggests that:

  • DPAs would only be available to companies (individuals would not be able to seek a DPA).
  • DPAs would only be available for a publicly available list of Commonwealth ‘serious corporate crime’ offences.

 

How will DPAs be negotiated in Australia?

The paper also outlines a proposed framework for how DPAs will be negotiated in Australia.

 

Initiation of DPA negotiations

  • A decision on whether to enter into DPA negotiations would be at the discretion of prosecutors. However, the Government will make publicly available guidance on factors that prosecutors may consider in exercising this discretion.
  • The DPA negotiation period would begin once a prosecutor extends a formal letter to the company offering to begin DPA negotiations.

 

Negotiation

  • Prosecutors could conduct DPA negotiations as they see fit, but would be guided by the Prosecution Policy and relevant undertakings entered into by the company.
  • The terms of a DPA would be determined by the parties. These will be adapted to suit the particular case but may include requirements to pay financial penalties and reasonable costs associated with administering the DPA and an agreement to implement corporate compliance programs.
  • An outcome of the negotiations could be the CDPP declining to prosecute the company (a declination), either party abandoning negotiations, or the production of a final DPA for approval.

 

Approval

  • A prosecutor would be required to make a written application to a retired judge, seeking approval of the final terms of the DPA.
  • The retired judge would consider whether the DPA is in the interests of justice and whether the terms are fair, reasonable, and proportionate.
  • If the retired judge approves the DPA, it would take effect and be made publicly available on the CDPP’s website. If the DPA is not approved, the parties would be able to negotiate further or terminate the negotiations.

 

Oversight and response to DPA breaches

  • If appropriate, independent monitors would be appointed at the company’s expense to ensure that the company adheres to the terms of the DPA. The monitor would report to the CDPP.
  • The CDPP may attempt to address breaches of DPAs by providing the company with an opportunity to address the breach and/or renegotiate the terms of the DPA.
  • If this does not resolve the breach, the CDPP may seek to resolve the matter by referring the breach to a third party.
  • If the third party determines that the DPA has been materially breached, the CDPP may prosecute the company for the matters included in the DPA.

 

Conclusion of DPA

DPAs would be concluded by either of the following:

  • A material breach of a DPA, or
  • Fulfilment of the terms of the DPA and the subsequent undertaking by the CDPP not to prosecute the company in relation to the matters that were the subject of the DPA.

Nyman Gibson Miralis specialise in all aspects of white collar and corporate crime law, including laws concerning money laundering, fraud, tax offences and bribery of foreign public officials. Contact us if you require assistance.