Lawyer Monthly Magazine - April 2019 Edition

Contact Dennis Miralis Partner, Nyman Gibson Miralis Level 9, 299 Elizabeth Street, Sydney NSW 2000 Tel: +61 2 9264 8884 Fax: 9264 9797 Mob: 0414 933 168 ngm.com.au Dennis Miralis Dennis Miralis is a leading Aus- tralian defence lawyer who practices in the following ar- eas of complex domestic and international criminal law; white-collar and corporate crime; bribery and corruption; cybercrime; money launder- ing; serious fraud; worldwide asset forfeiture; transnational crime; extradition; Interpol Red Notices; anti-terrorism law; national security law and encryption law. He appears in all courts throughout Australia and regularly travels outside of Australia to advise in com- plex international criminal law matters. Considering these challenges, have changes been proposed to the Australian legislation? The Australian Government is considering changes to the Criminal Code, as detailed in the Attorney- General’s Department public consultation paper titled Combatting bribery of foreign public officials. If made, these changes would significantly expand the scope of activities that could be considered as bribery of foreign public officials and make these activities criminal offences. For example, giving benefits to candidates for public office in exchange for business advantages could soon be a crime under the Criminal Code. Another proposed change includes creating an additional offence of failing to prevent foreign bribery. This would impose liability on companies whose employees, contractors or agents, regardless of where they are stationed, have committed the offence of bribery of a foreign public official, unless the company is able to demonstrate that it had appropriate systems in place to avoid such behaviour. Money laundering through foreign bribery has been identified as an important issue. Why do criminals target foreign public officials to launder money? Investigations have shown that foreign officials present a ‘golden opportunity’ for money launderers. Not only does their prominent public position deflect suspicion about their financial dealings, but one also assumes that their dealings are legitimate. Their unique position of influence, trust and responsibility also places them in a position of singular corruptibility. What are the primary methods used for laundering money through foreign public officials? There are five main methods of laundering money through foreign officials: funnelling funds through a shell company or trust, through third parties, through professional facilitators such as lawyers, accountants, real estate agents and financial advisers, through international fund transfers and through companies linked to the foreign official. How can law enforcement agencies potentially detect this type of activity? Investigative authorities use a number of indicators to identify potential money laundering activities involving foreign officials, including when there are transactions involving large, unexplained amounts, multiple bank accounts are held, large amounts of money are dealt with using third parties, multiple international money transfers are received within a short period of time, and when corporate structures are used to obscure ownership of assets and equity. What are some of the key challenges international criminal lawyers face in foreign bribery matters? Advising and representing persons charged with foreign bribery offences requires an understanding of how inter- national criminal law has ex- panded to convention based crimes such as found in the OECD Anti-Bribery Convention. Particular challenges that arise in such cases include the use of mutual legal assistance to conduct international criminal investigations; the exchange of data across borders that poses a risk to an accused’s pri- vacy; an accused’s exposure to multiple investigations; and the use of Interpol Red Notices to immobilise a person under investigation. In these kinds of cases, it is essential that a com- prehensive multipolar legal strategy is in place that ensures that a person’s human rights and legal interests are properly recognised across each of the jurisdictions where they may be exposed to severe penal- ties including prison and asset forfeiture. LM APR 2019 47 Expert Insight www. lawyer-monthly .com