Australia

In Australia, the multilayered regulation of white-collar crime can often result in a company or an individual being investigated by a range of agencies, each responsible for the administration and enforcement of different state and territory or Commonwealth laws.

In addition to the common law that has developed in Australia’s courts, both Federal and individual state and territory legislatures have enacted criminal laws which have extensive offences that have sought to codify the common law, criminalising fraud, bribery, corrupt conduct, secret commissions and obtaining advantage, financial or otherwise, by deception. For example, the Criminal Code Act 1995 (Cth) (“Criminal Code”) codifies Commonwealth criminal offences while the Crimes Act 1900 (NSW) (“NSW Crimes Act”) sets out the criminal offence in New South Wales. These have been amended over the years and in addition to white-collar crime offences in other legislation, are discussed further in Questions 5 and 6, below.

While Australia has generally been keen to be part of the international development in tackling bribery and corruption, domestically the laws have remained complex and resources for agencies to tackle complex, cross-border bribery and corruption remain relatively constrained. This is because while Australia has “signed” onto international treaties and conventions, they have no force of law in Australia unless and until they are given the force of domestic law or enacted by the Federal legislature into statutory obligations.

OECD Convention

In December 1997, members (including Australia) of the Organisation for Economic Cooperation and Development (OECD) signed the Convention on Combatting Bribery of Foreign Public Officials (“OECD Convention”), which Australia ratified on 18 October 1999. Australia has been subject to regular peer review of its compliance with the OECD Convention since its ratification. The results are varied, and it is fair to conclude that Australia’s overall performance in enforcing its OECD Convention obligations has been below average. While Australia has made incremental improvements in how it tackles foreign bribery, its approach seems very reactive to OECD criticism rather than consistently proactive, which remains the case to this day.

UN Convention

On 31 October 2003, in Resolution 58/4, the United Nations (UN) approved and adopted the Convention against Corruption (UNCAC). Australia ratified the UNCAC on 7 December 2005. The UNCAC requires all member states to criminalise bribery of domestic officials, foreign public officials as well as private sector bribery. UN Resolution 3/1 in 2009 set up a peer review of each state’s implementation of UNCAC obligations. In 2019, UNCAC published its Review Report for Australia. While noting the broad array of anti-corruption related laws consistent with the UNCAC, it appeared that enforcement was low and there remained challenges to implementing Commonwealth-wide protections for whistleblowers (particularly in the public sector). The ever-present issue of permitting facilitation payments was also noted.

Importantly, in Australia, it is Commonwealth law that cover bribery and corruption of Commonwealth and foreign public officials. State laws cover commercial or private sector corruption as well as corruption in respect of state and local government officials. This will be expanded upon in response to Questions 5 and 6, below.

In general, if a criminal investigation commences, that usually takes priority over any investigation for any civil offences. This preserves individual rights against self-incrimination and ensures that where individuals are the subject of investigation and prosecution, their rights (including to a fair trial) are not prejudiced.

The territorial scope of Australian white-collar crime law varies (often according to where the offence took place or the connection of the legal person to Australia) and is generally set out in each specific legislative instrument.

In respect of the Australian criminal law, the Criminal Code provides that:

• under division 14, “standard geographical jurisdiction” applies when either the conduct or the result of the offence took place wholly or partially in Australia; and
• under division 15, four categories of “extended geographical jurisdiction” will apply:
  • the person charged was either an Australian citizen or body corporate at the time of the offence;
  • the person charged was an Australian resident at the time of the offence;
  • unrestricted extraterritoriality (noting a defence may be available based on the foreign laws which are applicable); and
  • unrestricted extraterritoriality (excluding the above defence).

The specific legislative instrument will state if extended geographical jurisdiction will apply to that law and, if so, which of the above categories is applicable.

The territorial scope of other white-collar crimes will need to be assessed on an individual basis. By way of example, the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (“AML/CTF Act”) provides for broad extraterritorial application, stating at section 26 that “Unless the contrary intention appears, this Act extends to acts, omissions, matters and things outside Australia”. This is to be contrasted with state legislation (for example the NSW Crimes Act), which will often require a geographic nexus between the offence and the Australian state or territory.

In Australia, the principal domestic white‑collar crime offences arise predominantly under the Criminal Code, the Corporations Act 2001 (Cth) (“Corporations Act”), state and territory criminal statutes, and specialised anti‑corruption legislation, and are centred on bribery, corruption, fraud, anti-money laundering and counter-terrorism financing and related dishonest conduct.

Criminal Code

Part 7.3 of the Criminal Code sets out the primary corruption, fraud and deceit offences which are applicable in circumstances where the offending conduct involves an official of the Commonwealth and is set out into two divisions:

• obtaining property or a financial advantage by deception; and
• other offences involving fraudulent conduct, such as general dishonesty, obtaining financial disadvantage and conspiracy to defraud.

The Criminal Code also sets out the Commonwealth offences relating to domestic government bribery, forgery and money laundering, that is, offences which relate to money or property that is illegally derived from the proceeds of serious crime or intended to be an instrument of serious crime. Defendants to such proceedings often rely on general criminal law defences regarding fault and intent.

Part 10.2 of the Criminal Code sets out a series of money laundering offences, based on a sliding scale of the amount alleged to have been laundered.

Part 10.9 of the Criminal Code makes it an offence for a false or negligent dealing with accounting records (defined broadly). These offences were introduced to reflect the state-based false accounting offences, in circumstances where they prove to be a more popular offence (for prosecutors) than the complex foreign bribery offence.

State and territory criminal statutes

It is not possible given the limitations of this guide to set out the white-collar crime offences in each state and territory; however, for brevity, focus is given to New South Wales (NSW) law. In NSW, Part 4AA of the NSW Crimes Act provides the statutory framework for the criminalising of corrupt conduct by way of bribery, fraud and deceit offences in NSW. This includes the destroying or concealing of accounting records, false or misleading statements and the deception by an officer of an organisation of members or creditors by false or misleading statements.

Anti-money laundering and counter-terrorism financing legislation

In addition to the criminal offences in the Criminal Code, the AML/CTF Act seeks to regulate the conduct of entities deemed to be most at risk for money laundering and terrorism financing activities (these being reporting entities as defined under the “AML/CTF Act”). Offences under the AML/CTF Act give rise to civil penalty proceedings, usually taken by the regulator, the Australian Transaction Reports and Analysis Centre (AUSTRAC) against the reporting entity.

Cartel offences

The Commonwealth framework regulating criminal cartel conduct is contained within the Competition and Consumer Act 2010 (Cth) (CCA). The CCA creates both civil liability and criminal offences on corporations and individuals making or giving effect to a contract, arrangement or understanding that contains a “cartel provision”.

Corporations Act offence

It is important to also note the parallel duties imposed on directors, other officers and employees by the Corporations Act. The Corporations Act creates duties of care and due diligence and of good faith which are imposed on directors and other officers and has been used by the Australian Securities and Investments Commission (ASIC) to hold directors and officers accountable for alleged corporate misconduct when criminal proceedings may not be warranted, or possible on the evidence.

Ancillary/accessorial offences

Ancillary offences — including concealment, conspiracy, attempt, aiding and abetting, and incitement — apply equally to white‑collar crimes under the Criminal Code and state or territory legislation. Corporate criminal liability may also arise through extended attribution principles and failure‑to‑prevent offences, while false accounting, record‑keeping failures, and obstruction of justice offences are likely to be considered by investigators and prosecutors.

Proceeds of crime/asset confiscation

Where criminal conduct results in a benefit to a company or individual, it is usually subject to civil proceedings under the Proceeds of Crime Act 2002 (Cth) or state equivalents (in NSW, the Confiscation of Proceeds of Crime Act 1989 (NSW) and the Criminal Assets Recovery Act 1990 (NSW)) where, upon a designated official deposing to a reasonable suspicion of a relevant offence, assets can, on an ex parte basis, be restrained and then forfeited to the state. Defendants bear a significant onus in seeking to discharge such orders and must prove that an asset was legitimately acquired and is not otherwise tainted by the alleged offending conduct.

Foreign bribery

In addition to the offences set out Question 5, above, which apply extraterritoriality by way of the provisions set out in Question 4, Australian law criminalises the failure by a company to prevent foreign bribery. Under section 70.5A of the Criminal Code, a company commits an offence if an “associate” (defined broadly) engages in foreign bribery for the corporation's profit or gain (i.e. by failing to prevent the bribery of a foreign public official by another person,), unless the company can demonstrate it had “adequate procedures” in place, designed to prevent such conduct.

Foreign government bribery

The Criminal Code more generally prohibits the provision, offer or promise of a benefit to a foreign public official with the intention of improperly influencing a foreign public official to secure or retain business or a personal or business advantage. It is a defence that the conduct was legalised (in writing) in the foreign country or it was a facilitation payment (defined narrowly).

Sanctions

Contraventions of sanctions are under two regimes:

• United Nations (UN) sanctions imposed by the UN Security Council are enforced through The Charter of the United Nations Act 1945 (Cth); and
• autonomous sanctions are enforced under the Autonomous Sanctions Act 2011 (Cth), the Autonomous Sanctions Rules 2011 (Cth) and numerous ministerial instruments issued under these laws.

Sanctions offences are based on strict liability, so if the offending conduct occurs, a company is liable unless it can establish that it took reasonable precautions and exercised due diligence to avoid the offending conduct.

While the following focuses on federal agencies, it should also be noted that each state and territory has prosecuting bodies (for example, in NSW, the Office of the Director of Public Prosecutions) as well as state-based independent commissions against corruption (or ICACs) which have proven to be highly proactive, with a range of compulsive powers to examine on corruption as it impacts state public sectors.

Australian Federal Police

The Australian Federal Police (AFP) is the federal law enforcement and police agency of the Commonwealth. The AFP investigates criminal offences under Commonwealth laws across Australia as well as crimes that occur in the Australian Capital Territory. It has broad statutory and common law powers.

Australian Criminal Intelligence Commission

The Australian Criminal Intelligence Commission (ACIC) is the Commonwealth statutory agency tasked with protecting Australia from serious and organised crime. It has a range of compulsive and secrecy powers that allow it to covertly investigate serious and organised crime.

Commonwealth Department of Public Prosecutions

The Commonwealth Director of Public Prosecutions (CDPP) is a statutory office responsible for the independent prosecution of Commonwealth offences. The CDPP acts in accordance with the Director of Public Prosecutions Act 1983 (Cth) and prosecutions are initiated and conducted in accordance with the Prosecution Policy of the Commonwealth and various other guidelines issued by the CDPP.

National Anti-Corruption Commission

The National Anti-Corruption Commission (NACC) commenced operations on 1 July 2023, and it has been established with, amongst other powers, a broad remit to consider and investigate referrals involving serious or systemic Commonwealth corruption. This includes alleged corruption before its establishment as well as statutory powers to investigate the conduct of ministers of the Crown, parliamentarians and their staff, public officials and contractors to all Commonwealth agencies or entities and any person (in the private sector) who seeks to corrupt a public official.

Australian Securities and Investments Commission (ASIC)

ASIC is Australia’s principal corporate and market regulator and is involved in the investigation of offences which arise under the Corporations Act, which include insider trading, breaches of directors’ duties and other offences which include an array of criminal and civil penalties.

Australian Transaction Reports and Analysis Centre (AUSTRAC)

AUSTRAC is the primary authority responsible for regulating and enforcing compliance with Commonwealth anti-money laundering and counter-terrorism financing legislation. Breaches of the Australian AML regime result in civil penalty proceedings, as opposed to criminal offences which are covered under the Criminal Code (see Question 5, above).

Plea bargaining

Charge negotiations are permitted under Australian criminal law, and it may involve an accused party pleading guilty to a lesser set of charges in exchange for the prosecution agreeing to drop other charges or accept a narrower set of facts.

Leniency

Under Australian criminal law, courts have recognised mitigating factors in sentencing to include cooperation with authorities, voluntary disclosure, genuine remorse and early guilty pleas. Separately, regulators have also devised their own frameworks and guidelines for determining leniency. For Commonwealth criminal proceedings generally, courts consider a range of mitigating factors, in accordance with the Crimes Act 1914 (Cth) (and all states and territories have similar regimes for state offences).

Self-reporting

As a general principle of Australian law, and aside from certain sexual crimes (nationally), there is no general obligation to report conduct that might amount to a criminal offence.

In NSW however, section 316 of the NSW Crimes Act creates an offence, where a person fails to report certain conduct, and that person has a reasonable (objective) belief that a serious offence (under NSW law) has been committed. This offence does not exist in any other jurisdiction in Australia.

Australia has no voluntary self-reporting system that is equivalent to the “deferred prosecution agreement” (DPA) schemes operating in other jurisdictions. In addition, the CDPP cannot negotiate a settlement amount or terms with any offender (company or individual). The High Court of Australia has made that clear, saying the imposition of penal orders lies within the sole discretion of the judicial sentencing court.

Structuring and conducting an internal corporate investigation

In Australia, the structure and conduct of an internal corporate investigation will largely depend on what has triggered the investigation. If a complaint came from an internal whistleblower (such as a current employee), careful consideration should be given during the early stage of the investigation, as well as throughout the inquiry about whether a disclosure is protected under Commonwealth law, how to engage with the employee, their prevailing work environment (to ensure there is no adverse action or psychosocial harm to that person) and the extent to which the employee is updated on any investigation. This is especially important given that Australian law imposes criminal sanctions if a whistleblower’s identity is disclosed and/or they are subjected to detrimental conduct in response to their complaint.

Initial steps should include identifying potentially relevant sources of evidence and taking steps to preserve them. Where criminal activity or a regulatory breach may be ongoing, immediate steps should be taken to identify the conduct and consider whether action can be taken to hold, suspend or defer ongoing conduct, while avoiding any potential contractual breach issues if they arise.

Legal professional privilege

To ensure that legal professional privilege (LPP) is maintained over investigation communications (and not inadvertently lost or waived), and which can properly be characterised as subject to LPP, external or broad publicity of communications should be discouraged, and communications kept to a small, identified group. If any circulation of privileged communications is to occur outside the investigation team, care must be taken to ensure any adverse consequences are limited. Consideration should be given to implementing an LPP protocol at the commencement of each investigation.

Critical issues

A company should consider whether third parties that are aware of an issue, such as the company’s auditors, may have a specific obligation to report potential misconduct. The conduct subject to the investigation may also be likely to come to light in another way, particularly through disclosure by third parties (contractors, suppliers and/or competitors), media coverage or protected whistleblower disclosures to certain regulators, to politicians and/or the media.

A company may also contemplate cooperation with bodies such as the AFP and, if so, regard should be had to the regulatory guidance to ensure cooperation is of utility to the company.

Despite some legislative reforms over the years, Australia has historically had a fragmented, complex and legalistic whistleblower protection regime in the public and private sectors which consistently lags behind those available in other comparable jurisdictions.

Private sector

Whistleblowers in the private sector who make a reportable disclosure that satisfies the statutory protections in the Corporations Act are granted a degree of protection, including anonymity. This legislative protection includes keeping the identity of the whistleblower confidential and any information that may lead to their identification. Criminal offences may be triggered if a whistleblower’s identity is disclosed or they are subjected to unlawful retaliation or discrimination. The Corporations Act requires that all public and large proprietary companies must have a whistleblower policy in place.

Public sector

Whistleblower complaints in the Commonwealth public sector are governed by the Public Interest Disclosure Act 2013 (Cth) (“PID Act”). Each Australian state and territory has its own statutory public sector disclosure regime. In general terms, allegations made under the PID Act are public interest disclosures and the process of assessing whether a claim is protected and what can be disclosed is not easy and may not capture all that a person might think is protected.

Enforcement of bribery and corruption offences in Australia is varied. For many years, domestic corruption cases were of limited number in Australia, and prior to 1999, foreign bribery by individuals and companies outside Australia was not an offence.

Currently, domestic enforcement from inquiries by state-based ICACs and whistleblower activities are constantly in the media. There is no doubt that, in NSW, and perhaps to a lesser degree in other states with similar bodies, there is little to no reluctance in the public, the business community or politicians from referring conduct to ICAC for investigation.

There have and continue to be limited foreign bribery prosecutions in Australia. There have been two significant prosecutions since 1999. In 2012, Securency International and Note Printing Australia pleaded guilty to a conspiracy to bribe foreign public offices in various Asian countries in seeking valuable banknote printing contracts (see [2012] VSC 302). All individuals pleaded guilty (to various criminal offences) and were convicted, but with no imprisonment. In 2021, Jacobs Group Australia also pleaded guilty to a conspiracy to bribe foreign public officials in Vietnam and the Philippines, yet spent years through appeals until its fine was settled (see [2021] NSWSC 657, first sentence and [2024] NSWSC 1000, second sentence post-appeals). The case against all individuals collapsed due to inadequate and unreliable Crown evidence. While the AFP expressed satisfaction at the results of these cases, the cases highlighted the time, complexity and cost of relying on the traditional criminal law to tackle corporate misconduct even where a company pleads guilty.

ASIC regularly commences proceedings involving the duties of care and due diligence and of good faith under the Corporations Act to hold accountable those directors and other officers who engage in corporate misconduct. Such cases, to the civil standard of proof, often have more chance of success.

The enforcement of foreign bribery by Australian authorities against Australian companies has been patchy at best, in contrast to the plethora of domestic corruption cases that emerge from state-based ICACs. Cases have been few and far between and have invariably involved opaque, secretive conduct that was not otherwise detected except where companies voluntarily disclose their conduct to the AFP. There has been ongoing social criticism of the complexity of Australian white-collar crime laws which recent governments have recognised and sought to reform, although how successfully, is hard to say.

Critics have long identified the general inadequacy of whistleblower protections under Australian law and the Australian government’s reluctance to introduce a deferred prosecution agreement scheme to help incentivise companies to self-report potentially criminal conduct as avenues for possible reform.

In relation to whistleblowers, a Federal Senate Committee in late 2025 recommended against establishing an independent Federal whistleblower protection authority on the basis that there would be regulatory duplication, amongst other things. Regrettably, Australia continues to lack a cohesive and holistic approach to whistleblowers across all sectors of society.