Transnational bribery and corruption investigations Down Under
Andrew George
Doogue + George, Melbourne, Victoria
As an Australian based criminal law practice, our firm has acted on behalf of clients in a number of finalised court cases and current investigations on behalf of corporate entities arising in countries such as Indonesia, Nauru, Papua New Guinea and Singapore where many of these companies are domiciled. This work is generally done independently of the commercial law firms who act for the clients and involves a lot of careful thought and strategic design at an early stage.
As with many transnational matters, there is often a layer of geographical complexity: a company might be domiciled in Singapore, the office holders might be in Indonesia and the allegations may arise from another country throughout southern Asia and the Pacific. And nonetheless, the matter may be investigated by the Australian Federal Police.
Our recent work in the Pacific has been more primarily focussed on Papua New Guinea and, to a smaller degree, Nauru. This gives us a uniquely broad perspective in our region upon which to consider some of the challenges facing those who seek to investigate corrupt behaviour and those who seek to defend such allegations of wrongdoing.
With Papua New Guinea and Nauru continuing to deal with the long-lasting effects of colonisation and the accompanying imposition of Western systems of governance and law, investigations in the field of bribery and corruption in these countries face several common challenges.
Weak institutional frameworks form the main hurdle for investigators. The political, legal and economic frameworks in both Papua New Guinea and Nauru are fragile. Frequent changes in government, short lived prime ministers with shifting alliances between political factions, instability in political parties and very strong personal relationships between political and business figures make for a political landscape characterised by a high degree of instability.
Legal and administrative institutions are also relatively weak, with chronic long-term underfunding and a lack of institutional capacity. Some anti-corruption institutions such as Papua New Guinea’s Independent Commission Against Corruption (ICAC) are young and often led by expatriates. Unfortunately, almost immediately upon its establishment, ICAC has been thrown into turmoil via internal disputation resulting in an apparent investigation into its own Chief Commissioner for alleged corrupt behaviour. As recently as last month, both the opposition leader and a former Attorney-General have called for the Chief Commissioner and the two Deputy Chief Commissioners to be removed.
In many resource-rich countries impacted by colonisation, corruption has frequently been linked to the extraction industries such as oil, gas, mining and timber. These industries appear to be fertile ground for the corrupt allocation of government contracts, licences and the management of state-owned enterprises. The economies of Papua New Guinea and Nauru have long been dependent upon the exploitation of natural resources (effectively only one natural resource in Nauru: phosphate deposits). Both countries have large informal economies which complicates efforts to track financial flows.
These primary structural issues interact with cultural norms, limited public awareness and geopolitical considerations, which of course includes the long-term relationship of both countries with Australia, the colonial power.
As Australian lawyers, these transnational matters involve working within systems that are different to those we practise in every day. This means adjusting our ordinary workflows to ensure we can engage in the strategic early investigations often necessary to prepare a full defence or persuade prosecutorial authorities against charging clients. This can involve dealing with issues such as a lack of record keeping systems, an over reliance on oral communication and agreements (particularly in the employment sphere), an absence of whistle-blower protections and an understandable lack of trust – all of which make the task of the defence lawyer more difficult.
In our experience, success in information and statement gathering in these matters comes down to adapting one’s practice in a pragmatic and culturally appropriate manner. Some of those basic ‘dos’ are:
- engage at a local level and in person;
- build rapport through trusted community leaders, local lawyers and trusted partners;
- respect culture, custom and social structures; and
- take time, spend time.
The successful conduct of any investigation, be it an internal investigation or in the nature of what we call a ‘pre charge’, largely depends on the degree of practical cooperation, access to records and credibility of witnesses.