Revisiting and Re-Situating Deferred Prosecution Agreements in Australia: Lessons from England and Wales

Abstract

Deferred prosecution agreements (‘DPAs’) are likely to be introduced in Australia to enable the settlement of criminal proceedings between the Commonwealth Director of Public Prosecutions and corporations. The hope is that DPAs will mitigate the risks and costs of criminal investigation and adjudication, and prove more effective in responding to corporate wrongdoing. This article analyses the DPA scheme in the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019, looking at its core purposes, animating principles, and placement in the wider legal scheme of corporate accountability. It reflects on the development and embedding of DPAs in the law of England and Wales, which exposes matters that need to be clarified and resolved if DPAs are adopted in Australia. It parses DPAs along three lines: cooperation, compliance, and compensation. These three factors make DPAs more likely to be offered and approved, as well as representing outcomes that DPAs seek to encourage. This article updates and extends existing critiques in Australia and beyond to provide new and concrete proposals for further reform of the proposed DPA scheme.