Note: Where available, the PDF/Word icon below is provided to view the complete and fully formatted document
Economics References Committee
22/04/2016
Foreign bribery

CROZIER, Commander Peter Barrington, Manager Criminal Assets, Fraud and Anti-Corruption, Australian Federal Police

McCARTNEY, Mr Ian, Acting Deputy Commissioner Operations, Australian Federal Police

[11:40]

CHAIR: Welcome. Thank you for appearing before the committee today. I invite you to make a brief opening statement, should you wish to do so, and then we will open it up for questions.

Mr McCartney : No, sir.

CHAIR: You have probably heard some of the testimony this morning, specifically in relation to, perhaps, the lack of prosecutions in this area. Would you like to respond to that evidence?

Mr McCartney : We are happy to respond to that evidence. The AFP has recognised the need to enhance our capability in relation to fraud and anticorruption in foreign bribery investigations. Since the establishment of the FAC in 2013-14, which I believe you are aware of, we have seen a substantial increase in referrals in relation to foreign bribery . We have four matters currently with the DPP in relation to our investigations and we have two matters before court. I think we need to say that, at a practical level, the investigation of foreign bribery offences is a complex and protected area. That has been a common theme from all people who have submitted to this inquiry. Given what we have put in place with the FAC—our enhanced capability and our enhanced focus on expertise for our own people—we believe we will see a positive flow-on in terms of future prosecutions in relation to foreign bribery.

In terms of the issue of our focus, it is not just our capability. The real importance of what we are doing in the FAC, which is the lead-on from what we did at Wickenby and the Serious Financial Crime Taskforce, is bringing all the agencies to the table to leverage off the capability of those agencies. So it is not just the AFP's focus. In this space, we jointly work with ASIC and have a seamless approach. The joined approach has been extremely beneficial. We also leverage off our foreign international partners. The AFP are part of the International Foreign Bribery Taskforce. Obviously, with all the recent reporting on unit oil and Leightons, those are examples where the AFP has engaged, through the taskforce, with our international partners.

An important point to make is that the work we do in law enforcement is not the single silver bullet to foreign bribery. The private sector is acknowledged in the role that they need to play in terms of governance and adherence to these sorts of issues. It is also important to put on the table that these are not just our views. I would like to refer to the recent OECD report in relation to Australian foreign bribery. In 2015, the OECD released its report on Australia. The working group commented that it acknowledged Australia is taking steps to implement a number of recommendations, with 16 out of the 33 recommendations fully implemented and nine partially implemented. In particular the working group commented that the AFP had strengthened its enforcement on foreign bribery by establishing the interagency Fraud and Anti-Corruption Centre. It also improved its cooperation with other agencies, including ASIC and international bodies. There was a follow-on meeting from that on 8 June in Paris and there was some positive oral feedback from the OECD. There were a couple of key points. It stated that, over the last 12 months, they have seen the results of the work that Australia has put into increasing and improving their investigations and upcoming prosecutions on foreign bribery. Australia has approached this task with a whole-of-government approach and agencies have actively work together in determination of making the best effort to improve their investigations into foreign bribery. It is acknowledged that Australia has no prosecutions underway on foreign bribery offences and it noted that Australia now has a robust evaluation and quality assurance review framework to ensure allegations are not prematurely closed.

CHAIR: I want to ask you about the Leightons investigation. I know you do not want to comment too specifically on what is happening, but we understand that those investigations have been going on for something like five years without charges at this stage. Can you tell us where that is up to?

Mr McCartney : Again, I do not want to delve into individual investigations. I can say that it is progressing well. I can say it has been an incredibly complex investigation, and that is linked into how long and how protracted it has been, but from our perspective we are positively progressing that investigation.

CHAIR: Can we expect to see some developments in the near future?

Mr McCartney : You can.

Senator DASTYARI: Thank you, Mr McCartney and Commander Crozier. I want to use the example that we talked about this morning, which was Leighton Holdings, to make a broader point and get your opinion. We heard evidence this morning that Mr Sasse was interviewed by you in 2011. Is that correct? Or 2012?

Mr McCartney : It was 2012.

Senator DASTYARI: He was interviewed in 2012, but I take it that 2011, or earlier than that point, is when you started looking at this matter; is that correct?

Mr McCartney : It was 2012.

Senator DASTYARI: In 2012 you started looking at the Leighton Holdings matter?

Mr McCartney : In 2012 we started the active investigation into the Leightons matter.

Senator DASTYARI: We are here four years later and that matter is still ongoing. I completely accept, Mr McCartney and Commander Crozier, that it is in your interests, as it is in everyone else's interests, for these matters to be dealt with as quickly as possible. You want these matters dealt with quickly. It is not in your interests to drag these things out unnecessarily—correct?

Mr McCartney : Correct.

Senator DASTYARI: So, what does it take on a policy level, or what policy changes need to be made, for us to have what you rightly describe as complicated matters dealt with quicker?

Mr McCartney : I think there are a couple of important points to make. The issue of long, protracted investigations on foreign bribery is not just isolated in Australia. If you look at the OECD reporting, the common term of an investigation, from investigation to prosecution, is between five and 7½ years, so this is an issue that is identified around the world. I think from a policy perspective we have been supported. I note the evidence this morning from the witness in terms of their technical expertise in terms of our people. What I can say is what we have done since then in terms of the work of the FAC, not just from a capability perspective but from an expertise perspective. What I can say in relation to that investigation is that it is a high priority and we are committed to seeing the end through.

Senator DASTYARI: But Mr McCartney, there are certain things that have been raised today that have outlined why these delays have been taking place. There was an observation—criticism is probably the wrong word—that the type of people who tend to work in the Australian Federal Police in these kinds of units may not have the relevant experience. Your evidence is that that is something you are aware of and have being addressing?

Mr McCartney : Correct.

Senator DASTYARI: There was also other evidence this morning, from Mr Wyld and others, about the rules of evidence, what information can and cannot be used, and what powers you do and do not have. There are two specific points that I wanted to raise with you, because the policy questions for us are: firstly, the complexity and difficulty of being able to use admissible evidence and whether you think that is an area this committee should be reforming; and, secondly, the idea—and, again, we had some experts here previously who were very supportive of it—of perhaps looking down the American and British path, where executives in companies in Australia will be held more responsible, or to a higher standard of responsibility, for their activities. Are they two measures that could actually result in more successful prosecutions and better evidence being entered?

Mr McCartney : Just on your first point: in terms of expertise, I think the point I have made is that we have identified the need for greater expertise and capability in the AFP. With regard to how we operate in this space from a cultural perspective: to be frank, a number of years ago there was a siloed approach between agencies, but now, with the work through Wickenby and the work through the Serious Financial Crime Taskforce, in fact it is very much a joined-up approach. In terms of expertise, we bring agencies such as ASIC to the table who have significant expertise in relation to corporate crime, and everything we do in this space is joint. In terms of legislation, obviously that is an issue for the Attorney-General's Department, but we have provided significant input and we have seen positive developments. As mentioned by the previous witness, Mr Wyld, we have seen the false accounting legislation brought in, which is a significant benefit to the work that we have done. The government has just released a discussion paper on deferred prosecutions, and that is a piece of work that the AFP strongly supports.

Senator DASTYARI: You support deferred prosecutions, don't you, Mr McCartney?

Mr McCartney : We do.

Senator DASTYARI: And you have been on the record as doing that?

Mr McCartney : Yes. We are on the record as doing that. With some of those aspects, again, obviously we have seen what is happening overseas and we have learnt from what happens well and what happens not so well. But it does puzzle me at times. At times we do have an inferiority complex—that because it comes from the UK or the US then it must be a better model. I think we have some aspects to learn from these countries but, in terms of the task force arrangements that we have put in place in Australia, from my perspective some of that is world's best practice.

Senator DASTYARI: How many effective prosecutions have there been for foreign bribery in this country in the past 15 years?

Mr McCartney : There are two matters before court at the minute.

Senator DASTYARI: But how many successful prosecutions—sorry, convictions—have there been?

Mr McCartney : There has been a number of convictions in relation to these two matters. The significant one is securancing, and there has been a number of convictions in relation to individuals in that matter.

Senator XENOPHON: Not pursuant to this law?

Senator DASTYARI: Pursuant to this law? Pursuant to the Foreign Bribery Act?

Mr McCartney : Correct. Going back to what the previous witness said, I think one of those persons was convicted on a state false accounting charge, but I will clarify that point and come back to you.

Senator DASTYARI: You have four matters before the DPP?

Mr McCartney : Correct.

Senator DASTYARI: And two matters before court?

Mr McCartney : Correct.

Senator DASTYARI: How many matters are there more broadly? I assume you have a triage system.

Mr McCartney : We do.

Senator DASTYARI: Are you able to go a bit further down the triage?

Mr McCartney : We have 18 active matters. Those 18 include four that are with DPP and two that are at court.

Senator DASTYARI: How many staff do you have? How big is your team that is doing this? I know you work with other agencies as well, but how many are there in your team?

Mr McCartney : I am happy to provide on notice to you the exact numbers, but within the FAC centre we have 110 AFP. Again, it is a concept of jointly working with other agencies and other areas within the AFP.

Senator DASTYARI: So you have a staff of 110 which has 18 active matters, not including the four that are with the—

Mr McCartney : No, that is including the four.

Senator DASTYARI: So you have 12 then that are active—the other six are obviously active—four of them are with DPP, and I imagine they come back and forth to you; and then two with the court.

Mr McCartney : Yes.

Senator DASTYARI: Going back to what I said, you have come out in favour of deferred prosecutions. Having prepared these types of documents for the DPP, and given the evidence that we heard earlier was that one of the areas that should be looking at reform is how evidence obtained from foreign jurisdictions is received and accepted, is that something we should be looking at?

Mr McCartney : I think there has been some legislative reform on that issue in the past, but it is a continuous discussion with DPP and the Attorney-General's Department.

Senator DASTYARI: Give me an example of what happens with this evidence. Say you are doing an investigation and, let's say, a bribe or something has allegedly happened with X Third World nation and you are trying to get some kind of, say, banking documentation or whatnot—I am using this as an example. Is the problem then that you may not be able to get that information in the style that would be accepted by the Australian courts as a standard?

Mr McCartney : I think part of the problem is some of the delays. To obtain that evidence we simply cannot go to that country and ask for that evidence and bring it back; we have to obtain that evidence under a mutual assistance request. That process can be lengthy, depending on the country we are dealing with—particularly in the UK—it is a much more streamlined process.

Senator DASTYARI: Another are of work of this committee has been in the tax space. If you are dealing in, say, a secrecy jurisdiction then, of course, that becomes harder again. There are some more rogue players in this international market than the British or the Europeans. Correct?

Mr McCartney : Correct. I think it is mixed but it is improving. In terms of the work that we do internationally and going back to the false accounting legislation, why that is really beneficial is that if we cannot prove that a foreign bride has actually been paid we can fall back to the false accounting charge and charge a person with that.

Senator DASTYARI: So that is the bit about documentation. You have made the point that there are challenges in being able to accept and look at the right documentation. That is more a matter for the DPP and Attorney-General's, but, as someone who collect this data, you have outlined what your frustrations are or the difficulties and challenges in obtaining that. That is completely understandable. The second point that I raised goes to this idea of responsibility and chain of command of responsibility. We have talked about the American and British legislative frameworks in this area. There is a notion around the responsibility of senior executives for the conduct and behaviour of subsidiaries and employees and others—more of a kind of chain of responsibility. Some of the criticisms that have been made in the submissions to our inquiry have been that perhaps one of the unintended consequences of the Australian law is that it facilitates an environment whereby not knowing is a way out, effectively. Whereas that does not exist in other jurisdictions—there is more of a responsibility to know and a responsibility to be able to account.

Senator XENOPHON: Where ignorance is a defence, basically.

Senator DASTYARI: Where ignorance is a defence. Is that a fair criticism? Is that something we should be looking at as we are looking at laws going forward?

Mr McCartney : Again, we continue to look at those issues but I think ignorance is often a defence for every crime we investigate. It is an issue for us to prove and, again, to prove beyond reasonable doubt that there is knowledge and intent in relation to that aspect.

Senator DASTYARI: Sure, but under the Foreign Corrupt Practices Act or the UK Bribery Act, there is a greater standard of responsibility to know than there is under the Australian law. That is the evidence we have been given.

Mr McCartney : Within the Australian jurisdiction in terms of corporate culture, there is no specific offence for corporate culture but, through the foreign bribery legislation, we can charge companies in relation to these offences if we show that there is an intention and there is direct knowledge by the board to direct the activities—

Senator DASTYARI: Have you ever?

Mr McCartney : I will take that on notice. I believe the company Securency was actually charged by DPP in relation to that. I suppose what I am saying—

Senator DASTYARI: That is one example, perhaps.

Mr McCartney : Perhaps, but again it is an example where that legislation has been utilised. The important aspect in terms of accountability and responsibility of directors—again that is where the very productive relationship we have with ASIC comes in, in terms of them looking at that aspect in terms of the governance and culpability of directors in relation to foreign bribery investigations.

Senator DASTYARI: You talked about 12 ongoing investigations. There are media reports that the matters that have been outlined in the Fairfax media regarding Unaoil are obviously one of them. Is that correct?

Mr McCartney : An aspect in relation to Unaoil, and we are on the record to say it is relating to Leighton.

Senator DASTYARI: And you are looking at that?

Mr McCartney : Correct.

Senator DASTYARI: But the aspect of the Unaoil that you are looking at is the Leighton component?

Mr McCartney : Yes. I think the other important aspect—and again I believe this is positive in terms of obviously you read in the media in relation to Unaoil, previous to that we have been actively working through the International Foreign Bribery Taskforce, particularly with our partners in the UK in relation to that aspect.

Senator DASTYARI: Is where we are at with the Panama papers a point at which it has kind of fallen on your desk yet or is it still going through that?

Mr McCartney : I heard the evidence yesterday of the commissioner and he spoke about the Serious Financial Crime Task Force. From our perspective, once we became aware there were a number of high level meetings with tax the process is that we use their expertise. So we are working with tax at the minute. They are going through an assessment process. Through that assessment process they may identify particularly what we are after in that space, and there is a need to organise some facilitators that may be referred from the tax office, after their assessment of the papers, to the AFP for investigation.

Senator DASTYARI: I am not normally one to quote the Prime Minister at that these kinds of hearings, but I wanted to, without prejudice, put the Prime Minister's comments of this morning to you. You have seen in the media, obviously, with Channel Nine this alleged payment in Lebanon. The Prime Minister said today:

I've got no doubt it will be of interest to various regulatory agencies.

He said that on the 2SM John Laws program this morning when asked whether he supported the idea of an investigation into that matter. Have you had any discussions with anyone about that matter? Is that news to you?

Mr McCartney : We have seen the media report. We have not received a referral in relation to that matter. Our understanding is that the authorities in Lebanon, where the alleged crime has been committed, still have an active investigation.

Senator DASTYARI: How does that work? They would have to refer it to you? Is that how it works?

Mr McCartney : We would have to engage the Lebanese authorities because, when you step back and look at it, the offence has actually occurred in Lebanon; it has not occurred in Australia. Whether we would have the ability to investigate that under legislation within Australia is obviously something we would have to assess.

Senator XENOPHON: I have a direct follow-up question on the issue, because it is something that journalists have asked us about today. There is obviously a dilemma for the Nine Network—that they have got their crew in Lebanon. In fact, there are some people that were involved in trying to seize the children who are still in custody. You can understand why Nine would want to get their own. I am sure any network would feel the same way. To what extent do you take into account the rule of law, or the lack of rule of law, in another country? One of the contentions here is that there were family court orders here and orders in Lebanon that conflicted with each other. Do you take that into account when you decide whether to go down the path of prosecuting a case or investigating a matter further?

Mr McCartney : We will look at the circumstances of each case, but I think what is important with this is that it is media reporting. In terms of factual information being put on the table, that has not occurred. Again, in answer to your question, we will look at the circumstances of each case.

Senator SMITH: You have talked a lot about the cooperation between you and other agencies et cetera. Staying with the issue about policy change and legislative change—and you did talk about continuous discussion with the Attorney-General's Department—how would you characterise the responsiveness of the Attorney-General's Department to your discussions or continuous discussions around possible legislative reform that could assist you with investigations and prosecutions?

Mr McCartney : It has been very positive. Within the AGD, they place a high priority on this form of crime. Engaging with AGD on various opportunities for legislative reform has been very productive.

Senator XENOPHON: I am not sure if you heard Mr Sasse's evidence this morning. Did either of you hear it?

Mr McCartney : I did not hear it.

Senator XENOPHON: The short issue was that he was quite surprised. I want to emphasise the context. It was not a criticism of the AFP. He just said that it is a specialised field that it requires intensive resources, and he was surprised at the lack of knowledge when he was asked questions about four years ago. He felt that he was educating the AFP more than the other way around. Again I emphasise this was not a criticism. What can be done about that in terms of—sorry, Senator Smith?

Senator SMITH: It might have been an investigation technique.

Senator XENOPHON: It might have been. I do not think Mr Sasse thought it was an investigative technique.

Senator SMITH: That proves that it might have been a very effective investigation technique.

Mr McCartney : Thank you, Senator.

Senator XENOPHON: I cannot top that, in terms of Senator Smith coming to your assistance. The issue is this: it does seem to most members of the public observing this to have taken a very long period of time. It took a considerable period of time since the initial investigation—serious allegations, four years and no prosecutions launched. You can understand why the public would wonder. If they get picked up on a potential offence, matters are dealt with fairly quickly. Why is something like this taking so long? Have things improved in that four-year period in terms of the resources and expertise you need to be able to tackle these things effectively?

Mr McCartney : I think I have answered that question in terms of our recognition that we needed to enhance that capability and how we work seamlessly with ASIC, with their expertise, and some of these other aspects. Again, I do not want to be seen to be making excuses—it is long and protracted—but we have spoken about MARs. One of the other issues is legal professional privilege. That is an area that we have focused on and invested quite heavily in, in terms of working with some of these companies to improve this process. There have been improvements on that issue in dealing with some of these—

Senator XENOPHON: Yesterday, the issue of legal professional privilege was a matter that was raised with Mr Jordan, who talked about people being gamed and stooged. One of the other senior officials from the ATO did make a point of saying they were frustrated that sometimes claims of legal professional privilege, a bedrock of our legal system, appeared to have been reckless claims that would be stretched out and impede, in effect, an investigation—in other words, is there a fast-track mechanism for fairly dealing with claims of legal professional privileges? Is that a view that the AFP shares?

Mr McCartney : It is. I think it might have been you, Senator, who mentioned that it is a privilege. It is not a blanket claim. If we go in and a conduct a search warrant, it is not a blanket claim on every document. In one of the cases that we looked at it took four years from the search warrant to actually get our hands on the legal professional privilege.

Senator XENOPHON: So, could I invite the AFP, on notice, to give further information and thoughts on this, as the ATO will.

Mr McCartney, you talk about the false accounting legislation, which you say is quite helpful in terms of doing your work, but isn't the US and the UK legislation more comprehensive in its approach to dealing with these matters? Is that a fair summary of that in the sense that there are more tools in the toolkit—to borrow from Chris Jordan's evidence yesterday—than simply having false accounting laws in place?

Mr McCartney : As you would be aware, they are very different legal systems, particularly with the US. In terms of—

Senator XENOPHON: Not so much the UK, though.

Mr McCartney : There obviously are some differences. The process that has happened over the last couple of years is for us to sit back and learn from some of the positive aspects and defer prosecutions. Again, it is one we are on the record as heavily supporting.

Going back to legal professional privilege, what we learnt through the case that took four years is that there is an onus on us, from an AFP perspective, to improve our internal practices, and we have. Particularly on these large corporate crime matters, we actually sit down with the company to work through the issue of legal professional privilege right at the start. I am not forgiving some individuals who have put blanket claims, but there has been significant improvement within the AFP in terms of internal practices. It is an issue we are happy to provide to you in terms of—

Senator XENOPHON: But you are up against it in terms of resources, aren't you?

Mr McCartney : On legal professional privilege it is not an issue of resources; it is an issue of legal argument and planning. If we get our planning right at the start and if we engage the company and the individual in the right way, I think that is the way to go.

Senator EDWARDS: Do you ever benchmark what you do against your colleagues that do the same thing in other jurisdictions? Do you look enviously at what some of those jurisdictions are able to cover, at what they are doing, and think, 'Wouldn't it be good'—whether it be in a legislative environment or in resources and capacity?

Mr McCartney : I spoke before about the International Foreign Bribery Taskforce. Peter has had closer involvement with that. I will get him to answer that question.

Cmdr Crozier : The capacity to look at what other agencies are doing and some of their experiences has been very valuable for us, not just when we talk about legislation; that is a different issue. It is more about capacity and the way that we might respond to investigations and the methodology we put in place to try to work through some of these investigations. As the Assistant Commissioner just mentioned, one of the activities that has been very good for us is the early engagement with some agencies that we are dealing with, both those that we work with closely and those that we might be undertaking investigations on. The capacity for us to cooperate with some of those agencies has been very positive for us. A lot of that comes from the exchange of experience and the exchange of methods.

I would also make the comment that we have been able to positively contribute to that as well. It has not just been a situation where the AFP is there or our partners are there taking all the information; it is actually us injecting some positive contributions to what we are doing in terms of methods and the way that the AFP is structured. It is not just our investigation capabilities; it is some of our other technical capabilities and the way that we work with our other partners' capabilities in that area.

Senator SMITH: There is obviously a tension between the speediness of resolution of an investigation and ensuring that the investigation is thorough enough that you can get a prosecution. You could probably hasten the conclusion of many investigations and be able to say in a KPI that you have delivered investigations below the OECD average, or whatever the case is, but that does not necessarily mean you will get the thoroughness around the prosecution. Indeed, the court process requires you to be very, very thorough. Can you explain a bit more about this tension between the speediness of an investigation and the thoroughness needed to ensure that you get the prosecution in court?

Mr McCartney : I do not think it is so much a tension as a requirement. It is the rules of evidence. Again, particularly with each of these offences, we have to obtain evidence from overseas. I have spoken about some of the delays with mutual assistance requests in working through this process. In these matters, at times we are dealing with and charging people at the high end of town—let me put it that way. The legal representation is at a very high level, so everything that we do from day dot will be challenged right through that process. We know the requirement to push these along, but we want have a successful prosecution at the end of the day, rather than being hasty or tardy or lacking process in that investigation.

Senator McALLISTER: We heard from the International Bar Association earlier and in their written submission they drew our attention to the OECD reviews of our compliance with the OECD convention. Their assessment is that, of those three reviews, each one has been more critical than the last. That is their perspective. There are a number of issues where the OECD, it seems, continues to express concern about our approach to corruption and foreign bribery. One of those requires us to ban facilitation payments. In your investigative work, or in the cases that you are presently working on, how significant is the facilitation payment defence?

Mr McCartney : On your first point, I probably do not share the view of the previous witnesses about the view of the OECD. I note that there have been some highly positive comments in terms of the OECD but I also note there has been criticism about prosecutions that have actually been brought in relation to these offences. In relation to facilitation payments, obviously Australia allows facilitation payments under legislation but discourages them, but we are talking about minor amounts. Definitely at no stage in any of the prosecutions, and not in any of the matters coming through, do we think that will be a viable defence in these sorts of matters.

Senator McALLISTER: The Attorney-General's Department's submission, which I gather you contributed to—

Mr McCartney : Correct.

Senator McALLISTER: talks about the AFP's role in educating corporate Australia about the nature of the facilitation payment defence. But what is it that you tell corporate Australia when you are communicating about this question?

Mr McCartney : I might throw to Peter, who is engaged with the private sector a bit more than me.

Cmdr Crozier : Obviously we would talk about the legislative frameworks and the Australian government's expectations of agencies working overseas. But one of the positives that we are finding from some of the private industries is their capacity to talk to their colleague agencies about their experiences, about the challenges that they have in some of the locations that they work in. Not only is it about the AFP engaging; it is also about bringing some of those companies together to talk about some of these issues.

From my experience, one of the real positives is that, whilst the message gets across with a regulator or a law enforcement agency being at the front of the table saying, 'You shouldn't do this; you shouldn't do that,' the message seems to get across a lot more effectively if it is one of their colleague agencies or companies talking about some of the experiences that they have had. It is almost like a 'lessons learnt' opportunity, where they will speak about some of the key challenges that they might have experienced to ensure that the company that comes in after them is better placed than they were and may not experience the same potential challenges that they experienced.

In terms of what the AFP will do, we are looking to talk about what the expectations would be of law enforcement, of regulators and of the government positions. Importantly, we would emphasise that things that are occurring are potentially occurring in another jurisdiction and they are subject to the jurisdictional requirements of that location.

Senator McALLISTER: On the specifics of the facilitation payment defence, I do not wish to mischaracterise their evidence, but I think the general tenor of the previous witnesses' evidence was that it is presently too broad and policy guidance from your agency to narrow and clarify the nature of a facilitation payment would be one intervention that might support a stronger culture of compliance.

Mr McCartney : It is an issue that we have obviously engaged on. You spoke about AGD's submission on the issue of facilitation payments, but what I can say to you is it has not been an impediment to any of our investigations or prosecutions. It has not been put out there as a defence.

Senator McALLISTER: Do you have a view about the size of a payment beyond which you might rule a line, a threshold?

Mr McCartney : In terms of the nature of facilitation payments, I think they need to be minor payments. With each case, you need to have a look at the circumstances of the case and usually the facts at the table. In the investigations we have outlined, the significant funds that have been paid could in no way be claimed as facilitation payments.

Senator XENOPHON: In relation to the fact that former ASX chief Elmer Funke Kupper quit his job in the face of an investigation involving what he knew of a $200,000 payment to family of Cambodian Prime Minister Hun Sen, can you advise us where that investigation is at?

Mr McCartney : It is an active investigation. It is a priority investigation.

Senator XENOPHON: You cannot tell us whether it is going to be six months, 12 months or two years before that will lead to action or nonaction?

Mr McCartney : No, we cannot.

Senator XENOPHON: How many active investigations are there within the AFP at the moment into foreign bribery and corruption? I do not want to know the details of them, but how many lines of inquiry and active investigations are there in terms of separate allegations of foreign bribery and corruption?

Mr McCartney : Senator Dastyari raised this point before. There are 18. Four are with the DPP and two are currently being prosecuted through the courts. So there are 12 active investigations.

CHAIR: Thank you very much, gentlemen, for appearing. We will have a short break and then we will resume.