19 Dec 2013

International Anti-Corruption Day 2013: A review of combatting corruption in 2013

by Peter Sise, Yehudah New

Prosecutions here and abroad for bribery and corruption show regulators are taking close interest in corruption.

There may be more significant holidays in December and you may not get a day off work, but it is still worth acknowledging December 9, which is the United Nations International Anti-Corruption Day. The day was established by the United Nations General Assembly ten years ago to raise awareness of corruption and the importance of the United Nations Convention against Corruption. Given the occasion and that 2013 is almost over, it is an ideal time to reflect on some of the year's developments in combatting corruption.

International developments

Since we are acknowledging an international day, we should start with international developments and one of the most recent: the publication of Transparency International's annual "corruption perception index" for 2013.

The 2013 index, which was released on 3 December, ranks 177 countries according to perceived levels of corruption. For 2013, Australia was ranked as the 9th least corrupt country based on perception, slipping from equal 7th in 2012. Denmark and New Zealand were equal first, having also shared that honour in 2012 with Finland. Afghanistan, North Korea and Somalia tied for last place as they had previously done in 2012.

Still looking at international developments, one of the more noteworthy developments of recent years was the commencement of the Bribery Act 2010 (UK) on 1 July 2011. While anti-corruption legislation in most jurisdictions focuses on the public sector, this legislation targets corruption in the private sector as well. The legislation has significant extra territorial reach as it may apply to any person conducting business in the United Kingdom, wherever the corrupt conduct occurs.

On 14 August 2013, the first charges were laid under the Act. The Serious Fraud Office (the body responsible for prosecuting corruption) charged two former executives of Sustainable AgroEnergy plc and one independent financial adviser with breaches of the Act relating to the promotion of biofuel products linked to tree plantations in Southeast Asia. More particularly, the men were charged with making and accepting a financial advantage contrary to sections 1(1) and 2(1) of the Act.

New anti-corruption bodies in Victoria and South Australia

Moving to a domestic level, there has been significant activity by anti-corruption bodies in several Australian States. In February, the Victorian Independent Broad-based Anti-corruption Commission became fully operational. The Commission released its first annual report on 15 October and first special report to Victorian Parliament on 26 November.

In September, the South Australian Independent Commission Against Corruption became operational. Now every Australian State has its own anti-corruption commission. The South Australian Commission is headed by former Federal Court Judge, Bruce Lander QC.

New South Wales' ICAC and the Bylong Valley saga

While new anti-corruption commissions have been established in 2013, the oldest commission has been in the media for much of the year.

The NSW Independent Commission Against Corruption, which was established in 1989, has spent much of 2013 conducting a public inquiry into alleged corruption surrounding the grant of coal exploration licences for the Bylong Valley and Doyles Creek. The licences were granted in 2008 by then Minister for Primary Industries and Minister for Mineral Resources, the Hon. Ian Macdonald MLC.

In July, the Commission released two reports concluding that Mr Macdonald, amongst others, engaged in corrupt conduct. Further, the Commission was of the opinion that consideration should be given to obtaining the advice of the Director of Public Prosecutions regarding the prosecution of Mr Macdonald for the common law offence of misconduct in public office.

Anti-corruption efforts to continue in 2014

In closing, we should look to what 2014 may have to hold.

The prosecutions of Securency International Pty Ltd, Note Printing Australia Limited and several individuals associated with those organisations are still afoot. The charges relate to alleged bribes paid to public officials in Malaysia, Indonesia and Vietnam during the period of 1999 to 2005 in order to secure banknote printing contracts. Charges were laid in July 2011 and are the first under provisions prohibiting the bribery of foreign public officials, which were introduced into the Criminal Code 1995 (Cth) in 1999.

It will be interesting to see whether the new Commonwealth Government develops a national plan to combat corruption, which was a task that the previous government had commenced. In September 2011, the then Commonwealth Attorney-General announced that his department would be creating Australia's first ever National Anti-Corruption Plan. The stated purpose of the plan was to develop a cohesive framework to coordinate and guide anti-corruption activities in Australia. A discussion paper was released in December 2011, submissions were received and then no more came of it.

And so concludes another year in the world of combatting corruption. Until 9 December 2014, may we continue to be vigilant to ensure that corruption does not pay.

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Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this communication. Persons listed may not be admitted in all States and Territories.