While the Corporations Act mandates self-reporting of breaches of Australian Financial Services Licence conditions, the Australian Federal Police (AFP) has also published a Guideline which recognises that incentivising companies to self-report, cooperate and remediate by offering alternative resolutions to investigations, other than a criminal prosecution, is consistent with the AFP’s Investigation Doctrine, contemporary international standards and efficient and effective use of public resources.
The Australian Federal Police Guideline explains and develops the principles associated with achieving an optimal investigation outcome for corporations that provide genuine, proactive and fulsome cooperation in an AFP investigation, including through self-reporting.
This Guideline is primarily directed towards investigations involving allegations of foreign bribery and related offending, however, the principles involved may also be applied in other AFP investigations involving cooperating corporations
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In summary, where a corporation has engaged in alleged criminal misconduct, but has:
* genuinely cooperated in an investigation, and
* demonstrated that it would not be in the public interest to refer the corporation for prosecution,
the investigation team will likely determine that the optimal investigation outcome is a non-conviction based (civil) Proceeds of Crime Act 2002 (Cth) resolution unless exceptional circumstances apply.
Financial service providers must have an Investigations Procedure to follow when they are the subject of an ASIC or AFP Investigation, including how to respond to a search warrant.
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Author: David Jacobson
Principal, Bright Corporate Law
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About David Jacobson
The information contained in this article is not legal advice. It is not to be relied upon as a full statement of the law. You should seek professional advice for your specific needs and circumstances before acting or relying on any of the content.
