Deferred prosecution agreement scheme code of practice
The Law Council of Australia welcomes the draft Code of Practice issued by the Attorney-General’s Department and supports its adoption. The Law Council is grateful for the assistance of its Foreign Corrupt Practices Committee of the Business Law Section and National Criminal Law Committee in the preparation of this submission.
The Law Council has strongly supported the adoption of a deferred prosecution agreement (DPA) scheme in Australia. In that regard, the success of the UK system since its introduction in 2014 is most recently illustrated by the Rolls Royce DPA (now the third use of a DPA in the UK) which illustrates the advantages from a regulatory enforcement perspective that can be achieved through the principled application of a DPA regime.
Critically, regulatory implementation of a DPA scheme in Australia will need to give corporations the confidence to self-report in exchange for a meaningful reduction in penalty and resolution timeframe where there is genuine co-operation and remediation by the corporation. While the draft Code details what might be required of a cooperating corporation, it is silent as to the likely reduction in penalty that will be obtained. If corporations do not have sufficient certainty to conduct a cost benefit analysis at the outset, that will likely affect the level of participation in the scheme.
You can read the full submission below.