Companies investigated for foreign bribery should be able to cut deals: BHP – Richard Baker, Nick McKenzie

” Australian companies being investigated for foreign bribery should be able to cut deals with police to avoid criminal prosecutions, according to BHP Billiton.

In a submission published by the senate committee on foreign bribery, BHP Billiton said Australia’s laws on foreign bribery should be changed to allow companies to make deferred or non-prosecution agreements with authorities for lower-scale bribery-related incidents.

Unlike the UK and US, which allow companies to reach settlements with authorities, Australia only permits federal police to lay criminal charges or take no action at all. Foreign bribery investigations involving Australian companies are usually lengthy, costly and difficult for police to gather evidence from overseas jurisdictions.

A BHP Billiton executive said the Australian approach was “all or nothing”.

Despite Australia making foreign bribery a criminal offence since 1999, the AFP has launched only two prosecutions.The most well known case, which involves subsidiaries of the Reserve Bank of Australia and their top former executives, is still before the courts despite charges being laid more than four years ago.

The AFP is still investigating BHP Billiton for foreign bribery issues. It also has long-running investigations into Leighton Holdings, now known as CIMIC, and Tenix.

BHP Billiton has first-hand experience of negotiating a settlement after the US Securities Exchange Commission this year fined it $US25 million for breaching the Foreign Corrupt Practices Act in relation to its 2008 Beijing Olympics hospitality for foreign officials

The mining giant also wants the defence of a “facilitation payment” to be removed from Australia’s criminal code. Some companies argue that a facilitation payment to a foreign official to get them to quickly fulfil one of their responsibilities, such as expediting a licence renewal, are acceptable and do not constitute a bribe. ”