Foreign Bribery Update – May 2018

Articles Written by Robert Wyld (Consultant), Yoness Blackmore (Senior Associate)

Please insert this Update behind the Updates tab in your copy of the JWS Foreign Bribery Guide.

The key issues that are covered in this Update include:

  • Australia – ASIC and Australian Wheat Board UN Oil-For-Food Cases
  • Australia – Foreign Bribery Law Reforms
  • Australia – Private Sector Whistleblower Protection Reforms
  • Australia – Senate Economics Reference Committee Review of Australian Foreign Bribery Laws
  • International – Transparency International 2017 Corruption Perception Index
  • International – EY 2018 Global Fraud Survey
  • Malaysia – Corporate Corruption Offence
  • OECD – Draft Disclosure Rules and Lawyers as Intermediaries with Reporting Obligations
  • Singapore – Deferred Prosecution Agreement Scheme
  • United Kingdom – Privilege and Internal Investigations
  • United States – Whistleblower Reports to the SEC to Secure Protection

Australia – ASIC and Australian Wheat Board UN Oil-For-Food Cases

On 23 April 2018, the last gasp of the decade long battle by the Australian Securities & Investments Commission (ASIC) against various Australian Wheat Board (AWB) executives arising out of the ill-fated UN Oil-For-Food humanitarian program (OFF Program) passed into history with barely a ripple. The Victorian Court of Appeal dismissed ASIC’s appeal against the Trial Judge’s rulings that threw out ASIC’s case against Peter Geary for alleged breach of his statutory duties. The appeal judgment is at http://classic.austlii.edu.au/au/cases/vic/VSCA/2018/103.html.

The Court of Appeal, while not condoning the conduct of senior AWB officials, including the former Chairman, Managing Director and Chief Financial Officer (each found liable for various offences), who were “proved to have been at the centre of this entire sorry affair”, found that ASIC’s case against Geary failed because, in substance, ASIC could not displace the genuine and reasonable belief Geary had that the trucking and inland service fees (paid to the Iraq Government through inflated prices via intermediaries) were not approved by the United Nations or otherwise were genuine fees. While Geary might have been one of a long list of recipients to numerous emails concerning these fees, they were not specifically addressed to him and ASIC failed to identify how Geary, or a reasonable person in Geary’s position, would have acted upon such emails.

Thus, from June 1999, when the first wheat contracts contained an “inland trucking fee”, later enhanced in 2000 with the “10% after sales service fee”, the story unfolded thus:

  • Between 1999 and 2003, AWB through 41 contracts, sold wheat to the Iraqi Grains Board with a face value of US$2,290,718,296 (see clause 5.10, Vol 1, Cole Royal Commission Report, 2006);
  • Between November 1999 and March 2003, AWB paid US$224,128,189.98 through an intermediary who in turn (less a commission), distributed those monies to various Iraqi Government ministries (page lxiii, Introduction, Vol 1, Cole Royal Commission Report, 2006);
  • Between 2004 and 2005, the Independent Inquiry conducted by Paul Volcker for the United Nations (towards which Commissioner Cole found that AWB engaged in a strategy of ‘passive cooperation’) found that AWB had channelled about US$212 million to the former Government of Iraq (see clause 28.337, Vol 3, Cole Royal Commission Report, 2006);
  • Between 2004 and 2006, the Cole Royal Commission examined the conduct of AWB and its officers, and in a substantial report, recommended various civil and criminal charges be considered against a range of individuals;
  • Between 2006 and August 2009, the Australian Federal Police (AFP) and ASIC conducted a Taskforce to examine the Royal Commission findings, until the AFP terminated its role in August 2009, handing the matter to ASIC, stating that criminal prosecutions were unlikely to be successful and were not in the public interest;
  • Between 2007 and April 2018, ASIC pursued various AWB executives for civil penalties and alleged breaches of their statutory duties and while ASIC settled and discontinued claims against some executives, the following agreed to or had imposed on them, sentences (declarations of a contravention of the Corporations Act, a fine and disqualification orders):
    • Andrew Lindberg, the former Managing Director, by an agreed settlement, was fined AU$100,000 and disqualified for 3 years from managing a company (Australian Securities & Investments Commission v  Lindberg  [2012] VSC 332);
    • Paul Ingleby, the former Chief Financial Officer, on appeal, by an agreed settlement, was fined AU$40,000 and disqualified from managing a company for 15 months (ASIC v  Ingleby  [2013] VSCA 49);
    • Trevor Flugge, the former Chairman, was, after a contested trial, fined AU$50,000 and disqualified for 54 years from managing a company (at trial, ASIC v  Flugge  & Geary [2016] VSC 779 and on sentencing, ASIC v  Flugge  (No 2) [2017] VSC 117).

At the end, it is worth recalling the words of Commissioner Cole when he pondered upon why AWB and its executives embarked on a course of conduct that would, in 18 years, result in the demise of the company (AWB lost its single desk wheat export monopoly powers and was ultimately acquired by a foreign competitor) and a stain upon all those involved and indeed, Australia’s international trading reputation. The Commissioner said this (at page xii, Introduction, Vol 1, Cole Royal Commission Report, 2006):

The conduct of AWB and its officers was due to a failure in corporate culture. The question posed within AWB was:

What must be done to maintain sales to Iraq?

The answer given was:

Do whatever is necessary to retain the trade. Pay the money required by Iraq. It would cost AWB nothing because the extra costs will be added into the wheat price and recovered from the UN escrow account [out of which approved humanitarian payments were made]. But hide the making of those payments for they are in breach of sanctions.

No one asked, ‘what is the right thing to do?’ Necessarily, one asks ‘Why?’

The answer is a closed culture of superiority and impregnability, of dominance and self-importance. Legislation cannot destroy such a culture or create a satisfactory one. That is the task of boards and the management of companies. The starting point is an ethical base. At AWB the Board and management failed to create, instil or maintain a culture of ethical dealing.

One wonders over the years, with the cultural and ethical problems apparently rampant throughout the Australian banking and financial services sector, whether Australian companies learn from the past. One can but hope.

Australia – Foreign Bribery Law Reforms

On 20 April 2018, the Senate Economics Legislation Committee published its Report on the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017 (the Corporate Crime Bill).

The Report is at https://www.aph.gov.au/sitecore/content/Home/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Affairs/CombattingCrime/Report.

The proposed amendments supported by the Committee covered the following:

  • To include a person standing or nominated as a candidate for public office as a “foreign public official” under Australian’s foreign bribery laws;
  • To remove the requirement that a foreign public official must be influenced in the exercise of official duties;
  • That the threshold test in the foreign bribery offence of “not legitimately due” be changed to one of “improperly influencing” a relevant foreign public official;
  • The amended foreign bribery offence will apply if a bribe was to obtain or retain a personal advantage;
  • The introduction of the strict liability corporate offence of failing to prevent foreign bribery;
  • When drafting the Ministerial Guidance on the adequate procedures for a company (to prove in defence of the alleged corporate offence), internal whistleblower systems should form part of the proscribed adequate procedures;
  • The proposed Deferred Prosecution Agreement (DPA) scheme for nominated Commonwealth offences (although one Senator noted there should be a set of minimum requirements for a DPA to be published, to avoid the perception of a lack of transparency in the process); and
  • The Government allows appropriate (4 weeks) consultation on the Ministerial Guidance for adequate procedures and the proposed DPA Code of Conduct.

The Committee recommended the Whistleblower Protections Bill be passed. Given the relatively minor changes proposed by the Committee, it is hoped that once the publication and consultation process for the draft Ministerial Guidance and DPA Code of Practice has occurred, the Corporate Crime Bill will be reintroduced to Parliament and enacted.

Australia – Private Sector Whistleblower Protection Reforms

On 22 March 2018, the Senate Economics Legislation Committee published its Report on the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 (the Whistleblower Protections Bill). The Report is at https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/WhistleblowerBill2017/Report.

The Committee recommended the Whistleblower Protections Bill be passed.

The Committee accepted that while the Whistleblowers Protections Bill did not include all of the recommendations made by the Joint Parliamentary Committee Report (covered in the December 2017 Update and at https://www.aph.gov.au/Parliamentary_Business/Committees/Joint/Corporations_and_Financial_Services/WhistleblowerProtections), it was a move in the right direction as a valuable contribution to reform even though some submissions regarded the current Bill as inadequate and others said the Bill should be withdrawn and redrafted to “get it right”. This view has been reinforced by concerns expressed by Prof AJ Brown, the undisputed leader in integrity and whistleblower protections in Australia. He has been reported in The Australian (on 13 April 2018) as saying, due to the drafting flaws he sees in the Bill, that “the only logical conclusion you could reach is that it would be better not to have the bill go forward unless these things are fixed”.

The Committee did recommend that the Bill include an explicit requirement for review. This is encouraging as we need to assess how these reforms work in practice. In addition, while the Bill did not address the question of whistleblower rewards or an independent authority to represent and act on behalf of whistleblowers, it is hoped that these topics remain on the radar to be reviewed over time.

It is critical that all listed and large proprietary companies review their existing whistleblower policies and how they interact with other policies and any external hotline. While the laws are likely to commence from 1 July 2018, all listed and large proprietary companies must have compliant whistleblower policies in place by 1 January 2019. Some important things to consider are the following1:

  • What “misconduct” is to be captured by an internal whistleblower policy and what conduct should be handled by other policies;
  • The motivation or indeed, the malice of a whistleblower, whether real or perceived, is irrelevant to how a company must respond to a complaint – what is critical is whether, objectively, the whistleblower has a reasonable belief in the complaint;
  • Training will be critical under the new regime to ensure employees and managers understand their responsibilities and do not, even inadvertently, contravene the provisions;
  • The appointment of experienced managers to handle and manage complaints by whistleblowers and the conduct of an investigation (mandated by the new reforms); and
  • Ongoing monitoring and review of how a whistleblower policy is being implemented will be crucial to protect the company (and individual employees) from contravening the new laws.

Australia – Senate Economics Reference Committee Review of Australian Foreign Bribery Laws

In late March 2018, the Senate Economics Reference Committee published its much-anticipated Foreign Bribery Report. This Report has been over three years in the making and has covered two parliaments due to a general election intervening and causing the initial review to lapse with a new referral by the current parliament. The Report is at https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/Foreignbribery45th/Report.

The Senate Committee undertook a substantial and wide ranging review of the state of Australia’s foreign bribery laws, their investigation and enforcement and the reasons for the popular perception, and indeed criticism, of Australia’s position that it appears to have laws that, while complying with the OECD Anti-Bribery Convention and its obligations as a signatory, appear otherwise untested and little used. Overall, the Committee considered that “more needs to be done to enhance the effectiveness of Australia’s implementation” of the OECD Convention and the United Nations Convention against Corruption.

The Senate Committee made 22 recommendations.  While the substance of the recommendations were not always accepted by Government members of the Committee and indeed, the reservations in respect of certain recommendations are set out by the Government members in an appendix, in broad terms the Senate Committee recommendations repeat many of the substantive submissions made to it; namely, that there needed to be substantial and significant reform to Australia’s foreign bribery laws and practices in relation to successfully and proactively targeting foreign bribery and corruption.

The key recommendations included the following:

  • The Australian Government should prioritise the consideration and implementation of the recommendations made by the OECD in its Phase 4 Report published in December 2017.
  • The Australian Government should establish a mechanism that specifically provides for additional one off funding to appropriate Australian agencies for large and complex foreign bribery investigations and prosecutions. While it was disappointing but perhaps predictable that the Committee endorsed the interagency (and fractured) approach to dealing with foreign bribery (at clauses 3.101 to 3.103), it made it clear there needed to be permanent funding mechanisms in place to ensure the authorities were not cash-strapped and had to constantly seek ongoing funding from the Government. The 2017 ASIC Annual Report, in so far as ASIC is concerned (aside from the AFP and criminal investigations) shows that while ASIC had Commonwealth funding of AU$341.6 million over the last financial year (below the AU$350 million it received in 2012-2013 before significant costs to its budget), ASIC contributed AU$948.6 million from fees and charges (see the Annual Report at http://asic.gov.au/about-asic/corporate-publications/asic-annual-reports/#ar17). Thus it appears ASIC costs the Government and taxpayers nothing yet it generates massive fees – so why, one might ask, are governments reluctant to fund ASIC to get robust on enforcement? Therein lies deep philosophical debates as to the eternal dichotomy between self-regulation and State regulation.
  • The change to the critical threshold test in the existing foreign bribery offence (in section 70.2 of the Criminal Code), moving from a benefit that was “not legitimately due” to “improperly influencing” a foreign public official, was accepted by the Committee.
  • Overall, the proposed amendments to the foreign bribery laws, including the creation of a new corporate offence of failing to prevent foreign bribery (with strict liability on the company) which is the subject of the proposed bill (referred to above), is supported. The Committee considered that the creation of the corporate offence was overdue and that for too long, the law had protected those who used opaque financial and corporate structures to hide potentially criminal conduct (at clause 4.96). In addition, the Committee supported a principles-based approach in terms of the guidance the Minister is to publish in relation to the adequate procedures a company must demonstrate in order to satisfy the statutory defence (at clause 4.100). The Committee recommended that the Minister allow an appropriate period of time for consultation on the guidance and a transition period for companies to implement the necessary compliance measures to satisfy the statutory defence.
  • The Committee agreed that it was irrelevant under the Criminal Code whether a foreign public official was improperly influenced (as the new threshold test is likely to be) within or beyond their official duties (at clause 4.114). Thus any business advantage that is caught by the law can be an advantage for a third party.
  • The Committee considered whether the Criminal Code should contain a proposed offence of “reckless” bribery of a foreign public official. While noting that absent such an offence, companies and individuals may still structure their affairs so as to limit or avoid criminal liability, the Committee accepted the Bill as drafted, suggesting the proposed reckless offence be further explored in the future, once the impact of the reforms can be assessed (at clauses 4.132 to 4.135).
  • The report by the Parliamentary Joint Committee on Corporations and Financial Services on private sector whistleblower protections (the subject of an update in December 2017) was supported and the Australian Government was urged to implement all outstanding recommendations from that committee and its report. There was some dissent amongst the members of the Committee on this point, with the Government members (in a separate note, at page 204 of the Report) stating that the Whistleblowers Protections Bill (as noted above) was sufficient.
  • The facilitation payments defence currently contained in Section 7.4 of the Criminal Code Act 1995 (Cth) (the Criminal Code) should be abolished over a transition period. The status of the facilitation payment defence has been in limbo since 2011 when the Australian Government published a consultation paper on the topic. Now it seems the Government is resisting abolishing the defence as it appears to be supporting what the Report described as the “pragmatic justifications” for its continued existence – its removal will create “disadvantages” for small to medium businesses and it will have no effect on the prevalence of bribery or corruption (at clauses 7.52 to 7.60). The Committee (save for the dissenting Government members) expressed this view (at clauses 7.97 to 7.103):

The committee believes Australia’s position on this issue is increasingly isolated, and the committee is concerned about the inconsistencies between international standards and Australia’s domestic bribery laws and the domestic laws of comparative countries (of which some are Australia’s major trading partners)…the committee is deeply concerned and disappointed about the lack of legislative action that the government has taken in this area and wishes to recognise the initiatives of Australian businesses who have taken matters into their own hands by implementing internal policies prohibiting facilitation payments…a facilitation payment is not materially different from a small bribe and therefore should not be recognised as a defence to a foreign bribery offence in Australia…abolition of the facilitation payment defence should proceed with a transition period to allow business time to implement the changes to their internal processes and to inculcate a culture of compliance amongst its employees.

  • The Australian Government should introduce a debarment framework so that if companies have been found guilty of foreign bribery offences, relevant Australian government agencies should have the power to preclude that company as a tenderer from being awarded a government contract (funded by public revenue). It is somewhat surprising that the Attorney General’s Department told the Committee (at clause 8.29) that “there aren’t any specific debarment policies for procurement by the Australian Government”. Given the many years of proactive debarment regimes implemented by the World Bank and other regional and multilateral development banks and the fact that the OECD had been raising it as an issue since 2006 (with no great success, it appears), Australia’s silence on this topic is disappointing. The Committee considered the Australian Government had been remiss in not adequately exploring a foreign bribery debarment scheme for companies in Australia. Whether such a scheme should have as a threshold a guilty conviction of foreign bribery (which is as rare in Australia as a hen’s tooth) or a lesser standard is a topic yet to be considered by the Government.
  • The Australian Government should provide and publish clear practical guidance to companies concerning foreign bribery and, in particular, how an individual or a small company should go about making a voluntary report of foreign bribery. The Committee considered (at clauses 8.78 to 8.81) that it was “extremely important to develop a culture of risk awareness across the corporate sector” and that it was “essential that the government act to encourage self’-reporting and cooperation by corporates.” The Government was encouraged to publish practical information which could be used by individuals and small businesses to understand how to go about reporting misconduct.

While the Senate Committee Report was not unanimous, there are a number of important messages to take out of this review. The review is the culmination of significant work undertaken by the Senate over a 2-3 year period. Almost all submissions made to the enquiry supported substantial reform. The current Australian Government is in the process of enacting legislation, currently the subject of review by Parliamentary committees, which focuses on, in particular, foreign bribery offences, a Commonwealth deferred prosecution agreement scheme and private sector whistleblower protection reforms.

However, as we have so often seen in Australia, while these reports and recommendations for substantial change have been made in the past, they have rarely been followed through. It is encouraging that the current Australian Government has substantial bills before the Australian parliament to address a number of these issues. While they may not be perfect, and there is room to criticise the approach by the Government and indeed in some areas where it seems to ignore calls for reform and change, it is a positive start.  It appears the Australian approach is for small steps to be made over a long period of time.  That in itself has some merit, but it does create a public perception that, overall, the question of foreign bribery, complex commercial crime and opaque offshore business opportunities are simply too hard and too complicated and should be left for investigators and prosecutors to do their best with the limited resources that are provided to them without, from a philosophical perspective, imposing more regulations on over-regulated business.

Australia – Royal Commission into misconduct in the banking and financial services sectors, and enhanced penalties for corporate misconduct

Australia is currently experiencing a royal commission examining past misconduct practices in the Australian banking and financial services sector. Chaired by a retired High Court Judge, Kenneth Hayne AC, QC, the Commission is dissecting the inner workings of and the apparently ethically moribund commercial practices of banks, finance companies, life insurers and superannuation businesses. The Terms of Reference set out in the Letters Patent issued by the Governor General to the Commissioner are at https://financialservices.royalcommission.gov.au/Pages/Terms-of-reference.aspx. Whether it is charging for services never provided, billing deceased customers for ongoing services for years after death or just plain, old fashioned misleading or lying to the regulator, no one, even the regulators, come out of the sorry saga with any credit.

What emerges out of the demolished corporate reputations of institutions and leading executives exposed by the Royal Commission is an almost startling proposition – that an exclusive, and many would now say, myopic dedication to “shareholder return” needs to be carefully examined. Simon Longstaff, Executive Director of The Ethics Centre in Sydney, put his thoughts thus (in The Australian Financial Review, 25 April 2018, at http://www.afr.com/opinion/columnists/royal-commissions-are-the-result-of-shareholders-ruling-the-roost-20180425-h0z7g7):

For too long, company directors have claimed that their principal (in some opinions, sole) responsibility has been to increase shareholder wealth. The claim was never true – at least not in Australia. However, this false belief has gained currency because it offers a simple focus – making life relatively easy for those charged with the governance of corporations.

The trouble with the theory of shareholder primacy is that it drives a company and its employees to subordinate all other considerations to the overarching aim of maximising shareholder returns. So, treating customers fairly is not something to be done out of respect for their interests. Honesty and integrity are not held to be of intrinsic value. Instead, doing what is right is reduced to being a mere tactic – valued only as a means for increasing shareholder value.

Decent company directors, as decent people, would (and should) be appalled at the suggestion that employees, customers, suppliers and members of wider society are mere 'tools'. Yet, under the doctrine of shareholder primacy all relationships are 'instrumental' – and 'stakeholders' are reduced to the status of being mere means to be exploited for the ultimate benefit of shareholders.

While the Australian Government long resisted to the end the holding of such an inquiry, it has been moved with alacrity rarely seen in politics to implement a suite of reforms (covered in past Updates) to enhance the penalties available to the Australian Securities and Investments Commission (ASIC) to target corporate misconduct.

On 20 April 2018, the Government announced a range of reforms, the most important features of which are set out below. While these reforms are to be commended, they will be, at least in the eyes of the public, of little value unless and until ASIC takes up the challenge (popularly believed to have been misplaced) to target corporate misconduct with meaningful, public sanctions and hold individuals to account. This can often be time-consuming, costly and unpredictable, but without any real, perceived risk of a regulator taking strong, public action and relying instead on confidential self-regulated resolutions and negotiated “undertakings”, financially driven misconduct will continue apace in spite of the public scrutiny now increasingly commonplace across the public and social media.

The reforms are as follows:

  • Penalties for the most serious criminal offences under the Corporations Act will be harmonised and increased to a maximum of, per offence:
    • For individuals: (i) 10 years' imprisonment; and/or (ii) the larger of a fine of AU$945,000 OR three times the benefits;
    • For corporations: (i) the larger of a fine of AU$9.45 million OR (ii) three times benefits OR 10% of annual turnover.
  • An expanded range of contraventions subject to civil penalties with increase of the maximum civil penalty amounts that can be imposed by courts, to the maximum of, per offence:
    • the greater of a fine of AU$1.05 million (for individuals, from AU$200,000) and AU$10.5 million (for corporations, from AU$1 million); or
    • three times the benefit gained or loss avoided; or
    • 10% of the annual turnover (for corporations).
  • In addition, ASIC will be able to seek additional remedies to strip wrongdoers of profits illegally obtained, or losses avoided from contraventions resulting in civil penalty proceedings.
  • ASIC's powers will also be significantly increased through:
    • expanding its ability to ban individuals from performing any role in a financial services company where they are found to be unfit, improper, or incompetent;
    • strengthening its power to refuse, revoke or cancel financial services and credit licences where the licensee is not fit or proper; and
    • boosting ASIC's tools to investigate and prosecute serious offences by harmonising its search warrant powers to provide it with greater flexibility to use seized materials, and granting it access to telecommunications intercept material.

1 Comments gratefully acknowledged from Yoness Blackmore, Associate in the JWS Employment Group.

Canada – Future Deferred Prosecution Agreement Scheme

On 27 March 27, 2018, Canada announced that it has introduced amendments to its Integrity Regime to establish a Remediation Agreement Regime to, in the words of the Government, “help to advance compliance measures, hold eligible organisations accountable for misconduct, while protecting innocent parties such as employees and shareholders from the negative consequences of a criminal conviction of the organisation." The Regime adds incentives for companies to self-disclose to authorities and enhance their compliance programs and any resolution will be subject to judicial approval and oversight, as well as to prosecutorial discretion.

The structure of the Regime will be reflected in an updated Ineligibility and Suspension Policy that will be released by 15 November 2018, and will come into effect on 1 January 2019. The Regime is expected to come into force 90 days after the Budget Implementation Act receives Royal Assent.

China – Ongoing Anti-Corruption Reforms

The Chinese Government has been in a constant anti-corruption drive for some years, perhaps putting many countries to shame. As from 1 January 2018, substantial amendments came into force under the Anti-Unfair Competition Law (the AUC Law). The AUC Law seeks to maintain fair market competition in China and covers civil bribery offences. It needs to be considered with the Criminal Law, which prohibits active and passive bribery in the public and private sectors.

The most significant changes that Australian business operating in China or dealing with Chinese suppliers, distributors or customers need to appreciate are that the AUC Law:

  • Imposes no limits on bribery concerning the sale or purchase of goods or services or the giving or receiving of kickbacks (particularly if they give a competitive edge); and
  • Expands the categories of person who may be a bribe recipient to include employees of a counterparty, an entity or individual entrusted by a party to handle its affairs and/or those who use authority or influence to influence conduct;
  • Substantially increase the civil sanctions, now being:
    • Maintaining the clawback regime of unlawful income;
    • Administrative fines between RMB100,000 to 3,000,000 (up from RMB 10,000 to 200,000); and
    • A potential revocation of a business license of the business operator in violation of the laws.

The Chinese Government has also focused on bribes paid through third parties. There is now a presumption of liability on a company for the bribery conducted by its employees unless the company can demonstrate the employee’s conduct was unrelated to seeking a competitive advantage. There has been some suggestion that if a company can establish it has reasonable, or adequate, measures in place, it may displace the vicarious liability it otherwise will have imposed on it.

France – Agence Française Anticorruption Guidelines

In early 2018, the French anti-corruption agency published its Guidelines (in English) for the public and private sector to prevent and detect bribery and corruption. An English version of the Guidelines is at https://www.economie.gouv.fr/files/files/directions_services/afa/French_Anticorruption_Agency_Guidelines.pdf.

It is a comprehensive set of guidelines picking up on existing publications by other Governments. The Guidelines are published pursuant to the Sapin II Law. It is to apply to all companies, including subsidiaries of foreign groups, if any entity is established in the French Republic and regardless of where the entities do business. However, the extent of the Guidelines are more prescriptive than guidelines published in the US and the UK with some precise recommendations (for example, the Guidelines list ten separate recommended requirements for a company’s internal whistleblowing systems).

While it is still unclear the extent to which the French authorities will adopt a prescriptive view, it is hoped they will look favourably on global companies that take a proactive approach to managing bribery and corruption risks consistent with the prevailing US and UK benchmarks rather than requiring companies to reinvent their internal policies in France. Companies should however, review their existing policies and procedures where any of their business operations have a French connection to ensure where possible that standards recommended in the Guidelines exist in some form in their internal policies and procedures.

International – Transparency International 2017 Corruption Perception Index

During February 2018, Transparency International (TI) published is 2017 Corruption Perception Index (the colourful map we all so enjoy reading, using and judging others but less so ourselves).

For the Asia Pacific region, the report card was a little depressing. TI summarised its conclusions this way:

This year’s results of the Corruption Perceptions Index continue to show a high variance in public sector corruption across the Asia Pacific region. From top scorers like New Zealand and Singapore, to some of the worst scorers like Cambodia, North Korea and Afghanistan, more than half of the countries in the Asia Pacific score less than 50 on the index. In fact, on average, the region scores just 44. With a scale of 0 to 100, where 100 means very clean and 0 reflects a deep-rooted, systemic corruption problem, the Asia Pacific countries, on average, are failing.

For Australia, while it remains at No 13, and seems to believe in its anti-corruption credentials, the overall score has dropped. In 2014, Australia was ranked No 11 with a score of 80. In 2017, the ranking is 13 with a score of 77.  While credit must be given to the Australian Government for the current legislative reforms, nothing is likely to seriously shift the perception about Australia’s weak anti-corruption standing until the public see public prosecutions and sentences being imposed by court for corporate misconduct and those in power or exercising influence (in business or elsewhere) being held accountable for corporate misconduct.

International – Ernst & Young 2018 Global Fraud Survey

During April 2018, the annual Global Fraud Survey 2018 was published by Ernst & Young. The Survey is at https://fraudsurveys.ey.com/ey-global-fraud-survey-2018/. There are a number of findings that are cause for reflection in relation to fraud and corruption:

  • One-third of business leaders see fraud and corruption as one of their greatest risks;
  • The scale of fraud and corruption remains significant and we have seen no improvement in the results at a global level since 2012;
  • More than 1 in 10 respondents are aware of a significant fraud in their company in the last two years and in the Middle East, Latin America and Japan, this percentage is higher;
  • The propensity of respondents who would justify fraud to meet financial targets has increased on a global level since 2016;
  • 12% of respondents would justify extending the monthly reporting period; and
  • 7% would backdate a contract and 7% would book revenues earlier than they should be to meet financial targets.

In terms of the prevalence of fraud and corruption, the Survey results from Australia and New Zealand, Brazil, Saudi Arabia and the UK show increases in the percentage of respondents who believe corruption to be widespread. In these countries it is notable that there has been significant enforcement in 2017. This should be considered alongside the perception of the extent to which employees see compliance policies and zero tolerance standards being enforced – the Survey found that while management had often set clear intent regarding penalising non-ethical conduct with more than three in four respondents stating that there are clear penalties for breaking their policies, only 57% are aware of people actually being penalised.

The message that comes from this Survey as indeed with many others, is that the standards to engage in ethical and sustainable business practices remain a fundamental challenge for many businesses across different sectors. It often requires hard business decisions to say “no” to a transaction or commercial deal that, at one level might be attractive in the short term, but in the longer term, might give rise to serious reputational and legal liability issues for the company and individuals concerned.

Malaysia – Corporate Corruption Offence

During late March 2018, the Malaysian Parliament started the process of amending the Anti-Corruption Commission Act 2009 by the Malaysian Anti-Corruption Commission (Amendment) Bill 2018.

The most important change was to introduce a form of commercial corruption offence similar to section 7 in the UK Bribery Act 2010.

A commercial organisation will commit an offence if:

  • a person “associated” with the commercial organisation corruptly “gives, agrees to give, promises or offers to any person” any gratification;
  • the gratification can be either for the “benefit of that person or another person”;
  • with intent to “obtain or retain business for the commercial organisation” or “to obtain or retain an advantage in the conduct of business for the commercial organisation”.

A person will be deemed to be associated with a commercial organisation if he or she is a director, a partner, an employee or a person who performs services for or on behalf of the commercial organisation, determined by all the circumstances and not simply the formal contractual relationship.

The penalty on conviction is a fine not less than 10 times the sum or value of the gratification or RM1 million, whichever is higher, or imprisonment for a term not exceeding 20 years or both.

The only defence available to the commercial organisation is that it had in place “adequate procedures designed to prevent persons associated with the commercial organisation from undertaking such conduct”.

In addition, the amendments focus on individual liability. A person who is the director, controller, officer, partner or is concerned in the management of the commercial organisation’s affairs must prove that the offence was committed without his or her consent and that he or she exercised due diligence to prevent the conduct occurring having regard to the “nature of his function in that capacity and to the circumstances”.

OECD – Offshore Opaque Commercial Structures and Disclosure Duties on Lawyers as Intermediaries

In December 2017, the OECD published a Discussion Draft, Mandatory Disclosure Rules for Addressing CRS Avoidance Arrangements and Offshore Structures (the OECD Disclosure Draft). The publication of the OECD Disclosure Draft followed on from the European Parliament publishing, in late 2017, its Recommendation following the inquiry on money laundering, tax avoidance and tax evasion (at European Parliament P8_TA-PROV (2017) 0491). The European Commission took a particularly strong position against those who “violate against the spirit of the law”. In relation to lawyers, the Commission expressed the view that lawyers should be held legally co-responsible when “designing tax evasion and aggressive tax plans punishable by law; and money laundering schemes…when they take part in fraud, they must systematically be liable for both penal sanctions and disciplinary measures”.

The OECD Disclosure Draft states that information published in the Panama and Paradise Papers “demonstrates that certain professional advisers continue to design, market or assist in the implementation of offshore structure and arrangements than can be used by non-compliant taxpayers to circumvent the correct reporting of relevant information to the tax administration of their jurisdiction of residence.”

A number of features emerge from the OECD Disclosure Draft, as set out below.

  • The OECD propose for consideration a set of mandatory reporting rules to apply to certain arrangements with a view to ensuring that ultimate beneficial owners and financial information is properly disclosed concerning an “offshore structure” that has or operates with an “opaque ownership structure”  for the purposes of implementing a “CRS Avoidance Arrangement”.
  • An obligation to disclose is to be placed upon an “intermediary”, being a person responsible for the design or marketing of the relevant arrangement and offshore structure (called a promoter) and those with a sufficient level of involvement in the design, marketing, implementation or management of such schemes (called a service provider providing “relevant services”) or who should be aware that the scheme is likely to be used to circumvent common reporting standards (CRS) or to obscure or disguise the identity of the underlying beneficial owner.
  • The definition of an intermediary should not be limited to those involved in “tax aspects” of an arrangement. A restrictive definition would potentially exclude a range of intermediaries such as investment advisers and lawyers who do not provide tax advice or tax services. The definition ought not to capture persons who only provide limited assistance in the implementation or organisation of an arrangement and could not reasonably be expected to be aware of the elements of an arrangement that have the effect of circumventing the CRS.
  • Reporting obligations are imposed on an intermediary and a “reportable taxpayer”. The following conditions arise under the OECD’s proposed disclosure model rules, relevant to the role of a lawyer.
    • An intermediary must disclose all the steps and transactions that form part of or constitute the CRS Avoidance Arrangement or offshore structure including key details of the underlying investment, organisation and persons involved and the relevant tax details of the client, the reportable taxpayer and any other intermediaries.
    • An intermediary is not required to disclose information concerning a CRS Avoidance Arrangement if it would reveal confidential communications between a client and a lawyer where such communications are produced for the purposes of seeking or providing legal advice or are used in connection with existing or contemplated legal proceedings and which are protected from disclosure under domestic law.
    • An intermediary must give written notice to its domestic tax authority, and the reportable taxpayer, that the intermediary (relevantly, a lawyer) has information of a CRA Avoidance Arrangement or offshore structure that is not required to be disclosed.
    • The liability to report attaches automatically to every person who is an intermediary, but to the extent only to disclose information within that intermediary’s knowledge, possession or control.
  • The model rules of disclosure propose a penalty on an intermediary and on a reportable taxpayer. As the primary intention of the disclosure rules is to target intermediaries, the penalty on an intermediary is suggested as a fixed rate or a percentage of the fees paid to the intermediary for the services to be provided. The percentage rate should be set at a rate to remove any economic incentive to avoid disclosure.

Lawyers invariably play a role in offshore structures designed and/or created by or on behalf of taxpayers in order that the taxpayer can structure its tax affairs in an appropriate (perhaps aggressive) manner, yet consistent with its legal obligations and the prevailing laws applicable to the taxpayer. What that role is or may be for a lawyer in fact is not always clear. If however, that structure involves tax evasion, then the taxpayer should be held accountable. Any reporting or disclosure obligations should however, be primarily imposed on the relevant taxpayer. Any reporting obligations on a lawyer should continue to be subject to pre-existing professional and legal responsibilities, including domestic rules of secrecy or confidence and legal professional privilege. This point was made in a number of submissions to the OCED on its disclosure model rules.

There is generally no offence in any country for “violating the spirit of the law” (despite what the European Parliament may seek), no doubt due to the inherent difficulty of defining the necessary “spirit” to be violated. A lawyer’s responsibility, in many countries, involves making certain inquiries and to, in general terms, know the client’s business and the persons who might be the ultimate beneficiary of a transaction. If the lawyer receives unsatisfactory instructions from a client or information which is incomplete, then in most jurisdictions the lawyer should cease to act if he or she believes the client may be seeking to act illegally. If the lawyer transgresses these responsibilities, he or she can be sanctioned. The right of any client to receive frank legal advice without fear of its disclosure and the duty of a lawyer to keep his client’s information confidential is a corner-stone of the role of the legal profession, the rule of law and the administration of justice.

Yet these long-standing rules and obligations are increasingly under attack from various governments and have triggered serious reviews of the responsibilities of lawyers and the extent to which the duty of client-lawyer secrecy and confidentiality should be pierced. The legal profession needs to be aware of these developments and to promote integrity and ethical conduct by all lawyers. If the profession does not recognise this as a serious issue, then governments are increasingly likely to consider enhanced reporting or disclosure obligations on lawyers in a manner that cuts through the secrecy and confidential relationship traditionally enjoyed between a lawyer and a client, to the potential detriment of the rule of law and the due and fair administration of justice.

Singapore – Deferred Prosecution Agreement Scheme

On 19 March 2018, the Singapore Parliament passed the Criminal Justice Reform Bill (the Criminal Justice Bill), which amongst other reforms, granted a power to the Singapore prosecutor to negotiate and enter into a DPA with corporate offenders to resolve misconduct claims.

Singapore has traditionally focused on the conduct by and the prosecution of individuals even though the Prevention of Corruption Act (by the Interpretation Act) allowed for corruption offences to be prosecuted against a company, which rarely occurred. Rather, there developed a culture of the issuing of a “stern warning” or a “conditional warning” which on at least one High Court judgment, amounted to “no more than an expression of the relevant authority that the recipient has committed an offence… it does not and cannot amount to a legally binding pronouncement of guilt or finding of fact.

Times move on and the Singapore Government has moved with the alacrity so often missing in Australia. The Singapore DPA regime introduced by the Criminal Justice Bill is broadly similar to the UK approach in that:

  • DPAs are only available to corporate entities and not to individuals;
  • DPAs must contain a statement of facts relating to the alleged offence and may impose various conditions (including the payment of financial penalty, disgorgement of profit, implementation of a compliance programme, imposition of a corporate monitor etc.);
  • court approval is a pre-condition;
  • the court must be satisfied that the DPA is in the interests of justice and that the terms are fair, reasonable and proportionate;
  • a DPA may be varied subject to court approval;
  • if the company fails to comply with the terms of a DPA, the Prosecutor may seek orders from the court and must prove the alleged breaches on the balance of probabilities;
  • there are conditions governing the use of material obtained while negotiating a DPA, including how a statement of facts will be treated; and
  • how money received under a DPA is to be dealt with is clearly specified.

The one significant difference is that unlike the UK, and what is proposed in Australia, the Singapore Prosecutor is not required to publish any prosecutorial guidelines. The Singapore Attorney General’s Chambers expressed its view, against prosecutorial guidelines, in this way (at https://www.agc.gov.sg/legal-processes/publication-of-prosecution-guidelines):

In our view, in current circumstances, the call for the publication of guidelines is misguided: we remain to be convinced that publication will bring benefit. We will, as we have on other issues, review our position in the light of new facts when they arise. We will act not by way of an impressionistic reaction based on incomplete information, but with full and deliberate consideration of all the relevant factors. But we do understand that there may be a desire to understand in some detail our decisions in certain cases. As we have noted before, we may issue statements to explain our position in a specific case, and to address misconceptions that may arise in such a case about the law and the legal process.

This development, in one of the two leading financial centres in the Asia Pacific region, make it that much more important, for international consistency, that the Australian reforms, mooted, reviewed and consulted on for over 2 years, are enacted without further delay. Companies undertaking business in the region will then have a much more even playing field in terms of the options to report corporate misconduct than currently exists.

United Kingdom – Privilege and Internal Investigations

A number of recent cases have considered the application of litigation privilege over documents created during an internal investigation. These decisions have followed the judgment in SFO v Eurasian Natural Resources Corporation Ltd [2017] EWHC 1017 (QB) which is currently the subject of an appeal.

The ENRC case concerned interview notes prepared by outside counsel in an internal investigation of fraud and corruption allegations in two foreign countries. The investigation was conducted in parallel with the company's communications with the Serious Fraud Office (SFO) regarding self-reporting past misconduct. The court regarded the imminence of litigation between the ENRC and SFO was closer to a "mere possibility" than a "real likelihood," falling short of the "reasonably in contemplation" requirement of the litigation privilege under the prevailing test in the UK in the House of Lords decision in Three Rivers DC v Bank of England (No 6) [2004] UKHL 48, [2005] 1 AC 610. For litigation privilege to apply to a communication, the following conditions must be satisfied:

  • Litigation must be in progress or in contemplation;
  • The communication was made for the sole or dominant purpose of conducting that litigation; and
  • The litigation must be adversarial, not investigative or inquisitorial.

The Court held that a criminal investigation by the SFO did not constitute adversarial litigation for the purpose of litigation privilege. The Court found that the dominant purpose of the interviews conducted by external counsel was to avoid a criminal investigation (and, therefore, any subsequent litigation), rather than to defend a criminal prosecution. The interview memoranda were not subject to litigation privilege and had to be produced to the SFO.

In Bilta (UK) Ltd v Royal Bank of Scotland PLC [2017] EWHC 3535, the internal interviews occurred after the UK tax regulator wrote to the Bank setting out the legal basis for reclaiming more than £86 million in tax refunds. The court found that the letter, sent after a 2 year investigation, was a "watershed moment at which HMRC had decided to make an assessment”. The court accepted that as the bank was "gearing up to defend" a tax claim, litigation was at least the dominant, if not the sole, purpose of its activities at that time. The interview documents were therefore subject to proper claims for privilege.

In January 2018, in Health and Safety Executive, R. v Jukes [2018] EWCA176 the Court of Appeal, Criminal Division held that an employee's witness statement prepared in the course of an internal corporate investigation was not privileged. The Court ruled that an earlier statement made by an employee to the Health & Safely Executive (the regulator) was not privileged because it preceded any investigations or proceedings. The court considered than an investigation “is not adversarial litigation" and applied the Three Rivers and ENRC cases in concluding that there was no reasonable contemplation of criminal prosecution when the employee made his statement. The Court held that litigation privilege did not apply.

In April 2018, in R (on the Application of AL) v Serious Fraud Office [2018] EWHC 856, the UK High Court made findings critical of the SFO in connection with its failure (as prosecutor) to press for access to interview notes prepared for and held by external counsel (for a company) in order that such notes could be provided to an individual defendant facing criminal charges of conspiracy to corrupt and conspiracy to bribe. The prosecution was against one of the executives of XYZ Pty Ltd, which was granted a DPA by the High Court in July 2016.

The Court, while dismissing the claim on the basis that the Crown Court (not the High Court) was the appropriate forum for judicial review of the conduct of the SFO, went on to examine in some detail the conduct of the SFO, holding that it had failed to address relevant considerations, had taken into account irrelevant matters, had provided inconsistent and inadequate reasons for its decisions and applied an incorrect approach to the law.

The Court made a number of findings relevant to privilege issues.

  • In relation to questions of privilege over records created during an internal inquiry (even one conducted by external counsel), the law in the UK was settled, referring to and applying the judgments in the House of Lords in Three Rivers, the Court of Appeal Criminal Division in Jukes and the High Court in the ENRC case (referred to above).
  • The SFO should not have merely accepted the company’s assertions on privilege. The SFO had said the company’s stance was “not obviously invalid”, a position which the Court regarded as incorrect. As the interview notes were material to the case against the individual accused, the SFO should have robustly pressed to them to be provided and not left it for an individual defendant to do so. The role of the SFO as prosecutor was to press for production of those notes by the company and if there was any doubt about the law (which the Court said did not exist), to have the matter resolved by the relevant court.
  • The Court also dismissed the argument that the company had not waived privilege over the interview notes. The test was objective, assessed by reference to the conduct of the party asserting the privilege. It mattered not that a party subjectively asserted that there had been no waiver if objectively, privilege had been waived.

It is clear that following this case, the SFO is likely to take a much more rigorous view on requiring companies to produce records from internal investigations in circumstances where, under UK law, the Three Rivers test of privilege cannot be satisfied.

In Australia, for companies and lawyers with our privilege principles well-settled by the High Court of Australia (see Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission [2002] HCA 49 at [9]-[11]; 213 CLR 543) each case will be determined on its facts. There are various authorities that have considered when litigation is in the reasonable contemplation of a party as a “real prospect” (see Mitsubishi Electric Pty Ltd v Vic WorkCover Authority [2002] VSCA 59 at [22] per Batt JA; Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 2) [2007] FCA 444 at [53] to [55] per Heerey J; ACCC v Prysmian Cavi e Sistemi Energia SLR (No 2)[2012] FCA 44).

Nevertheless, these cases make it clear that if careful steps are not taken when interviews are conducted, in any internal investigation, documents produced as a result of the investigation may or may not be properly privileged. Much will depend upon at what time an internal investigation occurs, what a company knew or thought likely from the conduct it suspected might have occurred and the role that ongoing cooperation is likely to play under DPAs in the UK (and potentially elsewhere). No doubt the AFP and the CDPP will be following these developments closely.

United States – Whistleblower Reports to the SEC to Secure Protection

On 21 February 2018, the US Supreme Court handed down a judgment which made it clear that a whistleblower must report concerns or make a disclosure to the US Securities & Exchange Commission (SEC) in order to be protected by the statutory anti-retaliation provisions in the Dodd-Frank Wall St Reform and Consumer Protection Act 2010.

In Digital Realty Trust, Inc v Somers, 538 U.S.__(2018) (slip op at 9), the Court made it clear that the statutory framework was motivated by a desire to ensure that complainants report securities law violations to the SEC. Whether this means the SEC will be inundated with reports remains to be seen. What is likely however, is that while internal reporting might still occur and be preferred by companies, well-advised individuals will need to think, in the US, of a prompt report to the SEC at the same time as any internal report to ensure they are properly protected.

Australia – ASIC and Australian Wheat Board UN Oil-For-Food Cases

On 23 April 2018, the last gasp of the decade long battle by the Australian Securities & Investments Commission (ASIC) against various Australian Wheat Board (AWB) executives arising out of the ill-fated UN Oil-For-Food humanitarian program (OFF Program) passed into history with barely a ripple. The Victorian Court of Appeal dismissed ASIC’s appeal against the Trial Judge’s rulings that threw out ASIC’s case against Peter Geary for alleged breach of his statutory duties. The appeal judgment is at http://classic.austlii.edu.au/au/cases/vic/VSCA/2018/103.html.

The Court of Appeal, while not condoning the conduct of senior AWB officials, including the former Chairman, Managing Director and Chief Financial Officer (each found liable for various offences), who were “proved to have been at the centre of this entire sorry affair”, found that ASIC’s case against Geary failed because, in substance, ASIC could not displace the genuine and reasonable belief Geary had that the trucking and inland service fees (paid to the Iraq Government through inflated prices via intermediaries) were not approved by the United Nations or otherwise were genuine fees. While Geary might have been one of a long list of recipients to numerous emails concerning these fees, they were not specifically addressed to him and ASIC failed to identify how Geary, or a reasonable person in Geary’s position, would have acted upon such emails.

Thus, from June 1999, when the first wheat contracts contained an “inland trucking fee”, later enhanced in 2000 with the “10% after sales service fee”, the story unfolded thus:

  • Between 1999 and 2003, AWB through 41 contracts, sold wheat to the Iraqi Grains Board with a face value of US$2,290,718,296 (see clause 5.10, Vol 1, Cole Royal Commission Report, 2006);
  • Between November 1999 and March 2003, AWB paid US$224,128,189.98 through an intermediary who in turn (less a commission), distributed those monies to various Iraqi Government ministries (page lxiii, Introduction, Vol 1, Cole Royal Commission Report, 2006);
  • Between 2004 and 2005, the Independent Inquiry conducted by Paul Volcker for the United Nations (towards which Commissioner Cole found that AWB engaged in a strategy of ‘passive cooperation’) found that AWB had channelled about US$212 million to the former Government of Iraq (see clause 28.337, Vol 3, Cole Royal Commission Report, 2006);
  • Between 2004 and 2006, the Cole Royal Commission examined the conduct of AWB and its officers, and in a substantial report, recommended various civil and criminal charges be considered against a range of individuals;
  • Between 2006 and August 2009, the Australian Federal Police (AFP) and ASIC conducted a Taskforce to examine the Royal Commission findings, until the AFP terminated its role in August 2009, handing the matter to ASIC, stating that criminal prosecutions were unlikely to be successful and were not in the public interest;
  • Between 2007 and April 2018, ASIC pursued various AWB executives for civil penalties and alleged breaches of their statutory duties and while ASIC settled and discontinued claims against some executives, the following agreed to or had imposed on them, sentences (declarations of a contravention of the Corporations Act, a fine and disqualification orders):
    • Andrew Lindberg, the former Managing Director, by an agreed settlement, was fined AU$100,000 and disqualified for 3 years from managing a company (Australian Securities & Investments Commission v  Lindberg  [2012] VSC 332);
    • Paul Ingleby, the former Chief Financial Officer, on appeal, by an agreed settlement, was fined AU$40,000 and disqualified from managing a company for 15 months (ASIC v  Ingleby  [2013] VSCA 49);
    • Trevor Flugge, the former Chairman, was, after a contested trial, fined AU$50,000 and disqualified for 54 years from managing a company (at trial, ASIC v  Flugge  & Geary [2016] VSC 779 and on sentencing, ASIC v  Flugge  (No 2) [2017] VSC 117).

At the end, it is worth recalling the words of Commissioner Cole when he pondered upon why AWB and its executives embarked on a course of conduct that would, in 18 years, result in the demise of the company (AWB lost its single desk wheat export monopoly powers and was ultimately acquired by a foreign competitor) and a stain upon all those involved and indeed, Australia’s international trading reputation. The Commissioner said this (at page xii, Introduction, Vol 1, Cole Royal Commission Report, 2006):

The conduct of AWB and its officers was due to a failure in corporate culture. The question posed within AWB was:

What must be done to maintain sales to Iraq?

The answer given was:

Do whatever is necessary to retain the trade. Pay the money required by Iraq. It would cost AWB nothing because the extra costs will be added into the wheat price and recovered from the UN escrow account [out of which approved humanitarian payments were made]. But hide the making of those payments for they are in breach of sanctions.

No one asked, ‘what is the right thing to do?’ Necessarily, one asks ‘Why?’

The answer is a closed culture of superiority and impregnability, of dominance and self-importance. Legislation cannot destroy such a culture or create a satisfactory one. That is the task of boards and the management of companies. The starting point is an ethical base. At AWB the Board and management failed to create, instil or maintain a culture of ethical dealing.

One wonders over the years, with the cultural and ethical problems apparently rampant throughout the Australian banking and financial services sector, whether Australian companies learn from the past. One can but hope.


1 Comments gratefully acknowledged from Yoness Blackmore, Associate in the JWS Employment Group.

Important Disclaimer: The material contained in this article is comment of a general nature only and is not and nor is it intended to be advice on any specific professional matter. In that the effectiveness or accuracy of any professional advice depends upon the particular circumstances of each case, neither the firm nor any individual author accepts any responsibility whatsoever for any acts or omissions resulting from reliance upon the content of any articles. Before acting on the basis of any material contained in this publication, we recommend that you consult your professional adviser. Liability limited by a scheme approved under Professional Standards Legislation (Australia-wide except in Tasmania).

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