v. reports on enforcement in oecd convention countries - Begroting

to provide evidence they had conducted legitimate work.” 23 As a result of the Securency investigation, the AFP and
SFO are also reportedly cooperating in an investigation of the French company Alstom, as evidence has allegedly
revealed that the same agent used by Securency in Vietnam, the Company for Technology and Development, was
also used by European subsidiaries of Alstom to secure contracts in Vietnam. 24 The Australian Attorney General’s
Department informed the TI expert that it is looking into allegations of malfeasance in relation to the procurement
of D1.2 million (US $1.7 million) in medical equipment by a public hospital in Portugal from an Australian company
via its Swiss subsidiary, but it has not initiated a formal investigation. A prosecution is underway in Portugal (see
report on Portugal).
Domestic bribery by foreign companies: No cases or investigations.
Inadequacies in legal framework: There are some inadequacies, including a lack of effective criminal liability for
corporations. There is a particular need to strengthen the ability of the Australian government to hold companies
responsible for the actions of their overseas agents and subsidiaries, as discussed below. The law enforcement
authority investigating these cases considers, based on Section 70.2 of the Criminal Code Act, that before a
prosecution can be mounted it needs concrete proof from the relevant foreign authorities that the benefi t derived
by the foreign offi cial was “not legitimately due” to him/her.
Inadequacies in enforcement system: The continued absence of prosecution for the past decade under the
Criminal Code, as well as the absence of cases reported under the taxation law for this type of bribery offence,
makes it diffi cult to demonstrate that successful prosecution is feasible under the present system. Other factors
that could explain the failure to prosecute also include inadequate whistle-blower protection and the apparent
lack of specialist skills such as forensic skills needed to investigate this type of offence.
Legal framework and enforcement system regarding subsidiaries, agents and other intermediaries: Jurisdiction
extends only when it can be demonstrated that an Australian resident or citizen participated in the offence in some
way or that part of the conduct occurred in Australia. The offence extends to conduct which amounts to “causing”
a third party to offer or pay a bribe, which may catch some situations where the linkage to the resident parent
or offi cer is clear. However, in the opinion of the TI expert, a range of less clear-cut cases would not be included.
These problems are compounded by the diffi culty of obtaining evidence abroad in many situations. While there are
provisions in the Criminal Code to consider the acts of employees to be the fault of the company in order to make
the company liable, these provisions are untested in the foreign bribery context.
Recent developments: No signifi cant developments.
Recommendations: Set a higher standard with regard to the operations of offshore agents, subsidiaries and joint
venture parties by requiring companies to adopt adequate procedures to prevent bribery by their agents, subsidiaries
and other intermediaries. Enforcement authorities should demonstrate that prosecution is feasible based on facts
uncovered in the investigation of credible <strong>reports</strong> or – in the event that they decide not to pursue an allegation or
not to conclude an investigation – should explain the reasons for their decision.
AUSTRIA
LITTLE OR NO ENFORCEMENT: No cases and fi ve known investigations. Share of world exports is 1.1 per
cent.
Foreign bribery cases or investigations: There are no known cases and fi ve known investigations, according to media
<strong>reports</strong>. In 2010 the Austrian Anti-Corruption Prosecutor’s Offi ce initiated an investigation into the privatisation
of MÁV Cargo, the freight arm of the Hungarian state-owned railway. MÁV Cargo was jointly acquired in 2008 by
ÖBB Group, which controls Rail Cargo Austria, the freight branch of Austrian Federal Railways, and by Gysev,
another Austrian-owned rail company. ÖBB acquired the freight company for 102.5 billion forints (US $554 million),
and allegedly paid D7 million (US $10 million) to the Budapest consultancy group Geuronet for their services in the
23 The Age, 12 February 2011 “Bank head admits bribery defences were inadequate”
http://www.theage.com.au/national/bank-head-admits-bribery-defences-were-inadequate-20110211-1aqna.html
24 New York Times, 29 March 2010, “Alstom at Center of Web of Bribery Inquiries”;
www.nytimes.com/2010/03/30/business/global/30alstom.html?pagewanted=2
Progress Report 2011: Enforcement of the OECD Anti-Bribery Convention
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