Oz Minerals Ltd self-reported to the AFP that employees of Oxiana (Cambodia) Limited, a foreign subsidiary of Oxiana Limited that later became a part of the Oz Minerals group, may have bribed foreign officials to obtain mining rights in Cambodia between November 2006 and October 2009.
The company cooperated with the AFP criminal investigation, which was finalised in September 2021. A decision was made by the Commonwealth Director of Public Prosecutions (CDPP), in accordance with the Prosecution Policy of the Commonwealth (Prosecution Policy), not to initiate criminal proceedings in this matter.
In making its decision, the CDPP had regard to all relevant public interest factors contained in the Prosecution Policy many of which are referenced in the AFP and CDPP’s Best Practice Guideline on Self-Reporting of Foreign Bribery and Related Offending by Corporations.
The AFP and the company agreed, pursuant to a settlement entered into on 28 April 2023, that benefits which may have been derived from the conduct that led to the acquisition of the mining rights, owned by the controlled subsidiary which has since been sold, should be confiscated.
In the Supreme Court of Victoria on 30 May 2023, the AFP-led Criminal Assets Confiscation Taskforce (CACT) sought, and was granted consent orders, under the Proceeds of Crime Act 2002.
The consent orders provide for:
- a payment of a pecuniary penalty of $3.65 million;
- forfeiture of $5.71 million received by the company pursuant to the sale agreement (an immediate total of $9.36 million); and
- forfeiture of all future right and entitlement to all ongoing payments to the company pursuant to the sale agreement, as revised. The Official Trustee in Bankruptcy, represented by the Australian Financial Security Authority, will hold responsibility for receipt of these future payments on behalf of the Commonwealth.
AFP Commander Economic, Corporate Crime and Corruption Christopher Woods said when the company changed its personnel and governance systems, it identified the conduct which could amount to offences, and worked with the AFP to ensure its investigation could proceed.
“The company’s cooperation went beyond mere acquiescence in the investigation, and it agreed to provide future cooperation if required,’’ Commander Woods said. “The company has taken significant steps to remediate and avoid a recurrence of similar kinds of conduct to the alleged offending. Given the level of cooperation and remediation shown by the company in this case, the AFP supported the company’s submission to the CDPP that it not be prosecuted on public interest grounds”.
General Counsel Criminal Assets Litigation at the AFP – Andrew Hanger said “even with a high level of cooperation, companies should not be allowed to retain benefits derived from unlawful activity or which are the proceeds of crime. The AFP led CACT is ensuring that companies relinquish benefits derived from this kind of conduct.”
The AFP encourages companies to self-report foreign bribery and related offences. Criminal and/or civil action under the Proceeds of Crime Act 2002 (Cth) is considered through the AFP and CDPP’s Best Practice Guideline on Self-Reporting of Foreign Bribery and Related Offending by Corporations.
This is the first concluded matter to have involved application of the Best Practice Guideline. The Best Practice Guideline was introduced in 2017 in response to a recommendation of the OECD Working Group on Bribery which monitors compliance with the OECD Convention on Combatting Bribery of Foreign Public Officials in International Business Transactions.
The CACT brings together the resources and expertise of the AFP, Australian Taxation Office, Australian Criminal Intelligence Commission, AUSTRAC and Australian Border Force.
The CACT traces, restrains and confiscates benefits and property derived from unlawful conduct.
Funds confiscated under the Proceeds of Crime Act are deposited into the Confiscated Assets Account, which is managed by the Australian Financial Security Authority on behalf of the Commonwealth. The funds can be invested in programs that benefit the community, such as crime prevention or diversion programs.
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