Companies - Self-reporting and cooperating

Why should companies consider self-reporting possible criminal conduct?

A corporation may choose to self-report possible criminal conduct for many reasons, including to:

proactively identify and address wrongdoing within the corporation
comply with directors’ statutory and fiduciary duties to act in the best interests of the corporation
limit corporate criminal liability
minimise reputational damage
demonstrate a cooperative intent with the AFP in investigating the conduct
maximise the sentencing discount that will be available to the corporation in any relevant prosecution of the corporation,
be a good “corporate citizen”.

The Best Practice Guideline: Self-reporting of foreign bribery and related offending by corporations- external site explains the principles and processes that the AFP and the CDPP will apply when a company self-reports conduct that involves a suspected breach of Australia’s foreign bribery offence, or a related offence.

The guideline operates within the framework of the Prosecution Policy of the Commonwealth.

It describes the public interest factors that the CDPP will take into account in deciding whether or not to prosecute a company that self-reports suspected foreign bribery. It also outlines how the self-report will be taken into account by a court when sentencing the company, if a prosecution is commenced.

How can a company self-report possible misconduct?

You can self-report possible misconduct by:

using the Report a Commonwealth crime online form- external site
emailing a written report to the AFP National Operations State Service Centre

You can also post written reports to:

NOSSC Client Liaison Team
GPO Box 401
Canberra ACT 2061

What information should be included in a self-report?

There is no prescribed form for a company that wishes to self-report possible criminal conduct to the AFP. The content of a self-report will depend on the type of misconduct and the information available to the company at the time. A self-report should occur as soon as practicable after the possible offending is detected. This will allow the AFP to work with the company to ensure that relevant evidence is preserved and the integrity of the investigation is protected.

Companies should view the initial self-report to the AFP as the first cooperative step in an investigation.

If making a self-report in writing, companies should include the following information, if available:

Name of corporation
Details of who to contact at the corporation for more information (email address; phone number; address)
The details of any legal representatives for the corporation
Details about when the offending is suspected to have taken place
Suspected locations of the alleged offending
Names of people possibly involved in the alleged offending, including middle names and dates of birth, and
Any other facts known about the alleged offending

If a company provides information over the phone, they may be asked to provide any relevant documentation as soon as possible, subject to availability.

What should companies expect once the AFP commences an investigation?

The AFP may open investigations into alleged corporate misconduct on the basis of information derived from a variety of sources. Self-reports from companies are but one of those sources.

Regardless of whether an investigation was commenced as a result of a self-report, there are many benefits for companies that provide genuine and proactive cooperation during an investigation. Such benefits can include:

reduced investigation times;
remediation of any corporate culture issues within the company;
public interest and sentencing considerations as outlined in the AFP/CDPP Best Practice Guideline for Self-Reporting Foreign Bribery and Related Offending.

Even if a company is cooperating, the AFP will still need to complete a thorough and independent investigation and pursue all relevant lines of enquiry. A cooperating company will not get to dictate the scope, or remit of that investigation. However, the level of cooperation provided by the company will impact on the speed of the investigation.

In consultation with the Commonwealth Director of Public Prosecutions, the Attorney-General’s Department and the Australian Securities and Investment Commission, the AFP has prepared the following Corporate Cooperation Guidance (PDF, 775KB).

If a company has agreed to cooperate, the AFP may also seek to formalise that agreement via an Investigation Cooperation Agreement.

How should companies produce evidentiary material?

The AFP has prepared a Document Production Guideline (PDF, 905KB) for Cooperating Corporations which sets out best practices for evidence production.

How can companies help bring investigations to a conclusion?

The best way for companies to assist the AFP in bringing investigations to a conclusion is to make available all relevant evidentiary material and encourage its employees and associates to do the same.

If, following an independent AFP investigation, it becomes apparent that the company has itself committed criminal offences, the AFP’s Corporate Crime and Foreign Bribery Team is prepared to work with the company to see if agreement can be reached on a resolution proposal for referral to relevant decision makers.

As outlined in the AFP/CDPP Best Practice Guideline for Self-Reporting Foreign Bribery and Related Offending, such proposals may include AFP support for a decision not to prosecute on public interest grounds and fast-tracked guilty plea proposals.
Generally, the AFP will brief independent external counsel to provide advice in relation to any possible resolution.

The AFP expects that for any resolution to be supported by it, it will need to include agreement from the company to provide ongoing cooperation in any investigation and prosecution of individuals associated with the misconduct.