National Anti-Corruption Commissioner the Hon Paul Brereton AM RFD SC delivered this speech at the eleventh session of the Conference of the States Parties to the United Nations Convention against Corruption (COSP11) on 18 December 2025 in Doha, Qatar.
Good afternoon your Excellencies, distinguished delegates, ladies and gentlemen. It's my honour to join this distinguished panel to present an OECD and Australian perspective on non-trial resolutions in foreign bribery cases.
The OECD Working Group on Bribery
The OECD Working Group on Bribery utilises a peer monitoring system to prompt and steer members towards implementation of best practice in legislative frameworks and enforcement. In Australia, it has prompted:
legislative reform to clarify the existing foreign bribery offence, increase penalties for it, introduce a false accounting offence, and create a new offence of corporate failure to prevent foreign bribery
adoption of the Australian Federal Police and Commonwealth Director of Public Prosecutions' Best Practice Guideline on Self-Reporting of Foreign Bribery and Related Offending by Corporations
establishment of the Bribery Prevention Network, a public-private partnership supporting Australian business to prevent, detect and address bribery and corruption and promote a culture of compliance.
Turning specifically to non-trial resolutions, in the 2021 OECD Anti-Bribery Recommendation, the OECD broadly defines non-trial resolutions (NTRs) to include any outcome that does not involve a trial. As a former barrister and judge, I know that litigation is a high-risk and high-cost strategy: outcomes are binary (you win or you lose) and uncertain, proof is strict, proceedings are protracted, and costs are enormous.
For those reasons, settlements are very attractive alternatives, because they reduce risk and costs and time, though the price of that will usually be a reduced return. This is especially so in the case of foreign bribery which is, by its nature, a complex and covert crime.
The OECD perspective is that NTRs are an integral part of the global enforcement landscape. They have become the predominant means of enforcing foreign bribery and related offences since the OECD Anti-Bribery Convention entered into force 25 years ago. Significant examples include Siemens (2008), Odebrecht (2016), Vimpelcron (2016), Rolls-Royce (2017), Societe Generale (2018), Airbus (2021), Credit Suisse (2021), ABB (2022), Glencore (2022), Gunvor (2024) and SAP (2024).
But the OECD also stresses that, to have a deterrent effect, transparency of such settlements is critical. If settlements are not transparent, the deterrent effect will be lost.
Australia's experience
However, in common-law jurisdictions, of which Australia is one, there are limitations on the settlement of criminal proceedings. Generally, while the prosecution can accept a plea of guilty to a lesser offence, the penalty always remains a matter for the court, and cannot be agreed between the parties. Compensation, restitution and recovery of assets are not dealt with in criminal proceedings but in separate civil proceedings for the recovery of the proceeds of crime.
While Australia does not have a Deferred Prosecution Scheme, corporations can self-report. Corporations may choose to self-report foreign bribery for a range of reasons, including to actively address wrongdoing within an organisation, to comply with directors' obligations, or to limit corporate liability and reputational damage. Self-reporting is a relevant factor taken into account in exercising the prosecutorial discretion whether or not to prosecute at all, and in exercising the sentencing discretion as to penalty, and the discount in sentencing may be very significant depending on the circumstances.
A proceeds-of-crime authority may take separate legal action to recover assets and the benefits derived from the offending, and a criminal court may take any settlement of those proceedings into account when sentencing a corporation for relevant criminal offences. Under the Best Practice Guideline, this - combined with guilty pleas and agreements for the recovery of proceeds of crime - have enabled very good outcomes without a trial on the issue of criminal culpability, as three examples will show.
The first is the Oz Minerals (OML) case. OML self-reported to the AFP that employees of Oxiama (Cambodia) Ltd, a foreign subsidiary of Oxiana, which was later acquired by OML, may have bribed foreign officials to obtain mining rights in Cambodia between November 2006 and October 2009. OML co-operated with the AFP investigation, which concluded in September 2021. The company agreed that the benefits derived from the misconduct should be confiscated and in proceeds-of-crime proceedings agreed to pay a civil pecuniary penalty of $3.65 million and to forfeit the proceeds of sale of the subsidiary of $5.71 million, a total recovery in excess of $9 million, plus future receipts from the proceeds of sale.
Taking into account the self-reporting, OML's co-operation, and the agreed resolution of the proceeds of crime proceedings, the CDPP decided not to prosecute.
The second example is the Jacobs Group case. Between 2000 and 2002, employees of an overseas business unit of Sinclair Knight Metz (SKM), which was subsequently acquired by Jacobs Group, conspired to pay bribes to public officials in the Philippines and Vietnam to secure public infrastructure contracts. This was discovered by Jacobs when conducting due diligence for its acquisition of SKM in 2013. Jacobs self-reported to the AFP and co-operated extensively with the investigation over several years.
Jacobs Group pleaded guilty and were initially sentenced to pay a fine of $1.35 million. The prosecution appealed on the ground of inadequacy and the key issue was what was the maximum penalty, in circumstances where the legislation provided that it was three times the benefit derived. The first instance judge considered that this was the net benefit - after costs. The High Court ultimately held that it was the gross benefit, which meant that the maximum available penalty was $30 million.
In August 2024, Jacobs Group was re-sentenced to a fine of $3.375 million, allowing significant discounts from what would otherwise have been $7.5 million, for the self-reporting, assistance to authorities, guilty plea, and exemplary post-offence conduct.
Finally, this year an individual was sentenced to imprisonment for 21 months, wholly suspended, for creating false accounts to disguise payments made to foreign public officials. This was a lesser charge, to which the prosecution accepted a plea of guilty in substitution for the more serious foreign bribery charge which was withdrawn, in circumstances where $1.6 million of assets were restrained in proceeds-of-crime proceedings.
These cases demonstrate the practical use of NTRs in a common-law jurisdiction to secure good outcomes.
