5 Cross-jurisdictional issues
5.1 What jurisdictions might be in play?
Cross-jurisdictional issues can arise in relation to a range of incidents. Illustratively and most notably, anti-corruption laws form a global web, and corruption issues may create simultaneous legal exposure in multiple countries. Consequently, it is critical to consider what jurisdictions might be at play in responding to a potential incident.
Australia has laws criminalising the bribery of federal and foreign public officials at the federal level, and additional laws criminalising public and private sector corruption at the state and territory level. The Government's foreign bribery laws apply extraterritorially, meaning they apply to:
- all acts of Australian citizens, residents and entities, whether those acts occur within Australia or abroad; and
- all activities that occur within Australia, in whole or in part, whether those engaging in those acts are Australian or foreign citizens, residents or entities.
Almost all countries have laws that resemble Australia's, pursuant to international anti-corruption agreements. As a result, foreign corruption incidents may have parallel legal consequences in the countries:
- of the individuals involved in the incident;
- of the entities for the benefit of which those persons acted;
- of the government officials involved in the incident; and
- where the relevant conduct occurred.
Some countries' anti-corruption regulators assert jurisdiction in broader circumstances than others. In particular, the US Department of Justice takes a broad approach in determining whether any relevant conduct occurred within the US. The UK Serious Fraud Office has also been particularly active, and has demonstrated a willingness to pursue foreign-parented entities.
5.2 Disclosures to regulators in foreign countries?
If other jurisdictions are in play, in addition to considering the Australian notification and reporting requirements discussed in section 4, notification and reporting requirements in those countries will also need to be carefully assessed. If there is legal exposure in the US or UK, and a serious possibility that regulators in those countries may become interested in a potential corruption issue, proactive and early engagement with those regulators should be considered for the reasons discussed in section 4.8.
5.3 Other cross-border issues that might arise
Other issues that may also arise in investigations of this nature include the retention and retrieval of relevant data and evidence held offshore, particularly as countries have differing restrictions relating to privacy and the transfer of data outside of the jurisdiction. Issues of privilege also need to be carefully managed in cross-border investigations and where there is engagement with various regulators to avoid triggering inadvertent waivers in one or more jurisdictions.