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A Proposed Model for a Deferred Prosecution Agreement Scheme in Australia

The submission to the Attorney-General's Department's Consultation Paper on a proposed model for Deferred Prosecution Agreement scheme was prepared by the Law Council. 

The Law Council is grateful for the assistance of the Foreign Corrupt Practices Committee of the Business Law Section (FCPC), the National Criminal Law Committee and the Law Society of New South Wales in the preparation of this submission. 

Under a Deferred Prosecution Agreement (DPA) scheme, where a company has engaged in a serious corporate crime, prosecutors would have the option to invite the company to negotiate an agreement to comply with a range of specified conditions. The terms of the DPA would likely require the company to cooperate with any investigation, pay a financial penalty, admit to agreed facts, and implement a program to improve future compliance. A company would not be prosecuted in relation to the matters outlined in the DPA where the company fulfils its obligations under the agreement.

The Law Council continues to hold the views expressed in the FCPC submission on the implementation of a DPA scheme in Australia made in response to the March 2016 public Consultation Paper (the Law Council's earlier submission). The potential benefits that can be generated by a DPA scheme can be seen in the United Kingdom's (UK) experience in using DPA's over the last 12 months.

The Law Council supports the broad structure of a DPA scheme that is now proposed and described the Consultation Paper. The submission builds upon the Law Council's earlier submission, providing additional observations and comments on the proposed scheme.

You can read the full submission below.

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