Despite Australia making foreign bribery a criminal offence since 1999, the AFP has launched only two prosecutions. The most well known case, which involves subsidiaries of the Reserve Bank of Australia and their top former executives, is still before the courts despite charges being laid more than four years ago. BHP Billiton has first-hand experience of negotiating a settlement after the US Securities Exchange Commission this year fined it $US25 million for breaching the Foreign Corrupt Practices Act in relation to its 2008 Beijing Olympics hospitality for foreign officials. While the SEC made no finding of bribery or corruption, it found BHP Billiton did not have appropriate internal controls over the program which involved Asian and African officials being given business class airfares, accommodation and entertainment. The AFP is still investigating BHP Billiton for foreign bribery issues. It also has long-running investigations into Leighton Holdings, now known as CIMIC, and Tenix.

Deferred prosecution agreements allow a company charged with foreign bribery offences to be given a period of time to pay a fine, admit to material facts and make changes to ensure the offending does not happen again. A company must also promise full co-operation with authorities into the future. If all of this is achieved, prosecutors will drop the criminal charges. Non-prosecution agreements involve similar interaction between a company and authorities, but do not involve the filing of criminal charges. They are similar to enforceable undertakings used already in Australia by ASIC and the ACCC. Despite calling for more flexible laws, BHP Billiton said negotiated settlements should not replace criminal prosecution in serious cases of foreign bribery. "We do not view DPAs, NPAs or civil resolutions as a replacement for all corporate criminal prosecutions," its submission states.

"Criminal liability has a critical public role to play in expressing condemnation of illegal conduct, and acts as a strong deterrent. If a corporate entity commits a serious foreign bribery offence, it is essential that a just and transparent punishment is imposed on the entity, so that the public interest is served." The mining giant also wants the defence of a "facilitation payment" to be removed from Australia's criminal code. Some companies argue that a facilitation payment to a foreign official to get them to quickly fulfil one of their responsibilities, such as expediting a licence renewal, are acceptable and do not constitute a bribe. However, many companies, including BHP Billiton and Woodside, do not permit such payments and want them banned. "We think the availability of the defence can lead to a lack of clarity as to what is and is not permitted in respect of payments to foreign officials," BHP Billiton's submission argued.

Woodside's submission to the committee stated: "Woodside considers that it will be difficult, if not impossible, to comprehensively stamp out bribery of foreign public officials whilst Australian laws continue to condone the making of facilitation payments. Removal of the facilitation payment defence will also support a level playing field for Australian businesses operating internationally, some of which may be subject to laws such as the Bribery Act." Woodside also called for a new offence to be created for "failing to prevent" bribery, which could be defended by a company highlighting its anti-corruption policies and practices. It also called for government to increase communication with companies and individuals on what it considers the hallmarks of a good anti-bribery program. "From Woodside's perspective, many Australian businesses are still developing an awareness of foreign bribery risks and the controls which need to be implemented to manage those risks. Woodside sees proactive guidance by government as playing an important role in supporting the business community to develop that awareness." Both companies argued stamping out foreign bribery was in the economic interest of Australian companies.

