Updated July 14, 2026
Updated July 14, 2026
When a company cooperates with the AFP, its directors and employees are exposed, not shielded. Here is why, and what they should do about it.
By Bill Doogue, Director and Accredited Criminal Law Specialist, Doogue + George
The AFP’s April 2026 guideline gives a cooperating corporation a path to a civil resolution with no criminal conviction. It is easy to read that as good news for everyone inside the company. It is not. The mechanism that protects the company is built on giving up the people. If you are a director, an officer or a senior employee, the moment your company contemplates a self-report is the moment your interests and the company’s interests start to pull apart.
To earn a civil resolution, a corporation has to meet the AFP’s standard of genuine cooperation. That standard is not satisfied by a polite acknowledgement that something went wrong. The AFP expects the corporation to disclose all the people involved, to hand over the facts and the evidence, and to cooperate in any prosecution of those individuals. In other words, the company buys its clean outcome partly with information about its own directors and employees. Often in these matters I find there is a real issue about what actually happened and how was responsible. The narrative always matters.
This is deliberate. The policy rationale is that companies are useful to law enforcement precisely because they can deliver the individuals who would otherwise be very hard to investigate. The corporation gets the civil resolution. The individuals get identified, and potentially prosecuted, as natural persons. There is no parallel civil pathway for them.
It is worth being blunt about this. The company’s lawyers act for the company. Their duty is to the company’s interests, which, once a self-report is on the table, may well favour full disclosure and cooperation against the individuals. That is not a criticism of those lawyers. It is the structure of the situation. A director who assumes the company’s lawyers are also looking after the director is making a serious mistake.
I have advised corporations to report large criminal behaviour by their employees. If you are employed by the corporation then you work hard for them and tell them your honest appraisal.
The conflict does not wait for charges. It is present during the internal investigation, in the first interview, in the decision about what to disclose, and in the decision to waive privilege. By the time an individual realises their interests are not aligned with the company’s, they may already have said things, in an internal interview, that the company can and will pass to the AFP. We have appeared in hundreds of jury trials and like most lawyers who have you start assessing from day one how the evidence will land with a jury at the closing addresses. An experienced investigator is doing the same thing. Evidence that may seem quite benign to inhouse counsel could be used to devastating effect.
Most corporate self-reports are preceded by an internal investigation. Employees and officers are interviewed, often under an obligation to cooperate as part of their employment. Those interviews are usually conducted under the company’s legal professional privilege. Here is the difficulty for the individual: the privilege belongs to the company, not to them. The company can waive it. The AFP treats timely waiver, including over internal investigation reports, as a marker of genuine cooperation.
We recently waived privilege over more than a hundred thousand emails that on the face of them attracted privilege. We did not have to ask the authors or lawyers involved for their permission.
So an account a director gives in an internal investigation, believing it to be protected, can end up in the hands of the AFP when the company waives privilege to demonstrate cooperation. The individual’s own right to silence in the criminal process is a separate thing, and it can be undercut in practice by what they have already said internally.
The damage is usually done in the order of events, not in any single decision. A company discovers a problem. It engages lawyers to run an internal investigation. Employees and officers are interviewed, cooperatively, because they want to help and because their employment requires it. The company then forms the view that self-reporting and cooperation are in its best interests, and it waives privilege over the investigation to demonstrate that cooperation to the AFP. By the time an individual obtains their own advice, their account is already recorded and already disclosable. The protective moment was at the very start of that sequence, and it has passed.
This is why timing, not goodwill, is the thing that matters for individuals. The cooperative instinct is natural, and in an employee it is often contractually required. But it operates inside a structure designed to deliver individuals to investigators, and the individual is usually the last person in that structure to get independent advice, unless they act early enough to change that.
Sometimes in these matters the best advice for a corporation is to send people off to their own lawyers very early. Obviously that decision is based on a lot of nuance.
Directors carry statutory and fiduciary duties to act in the best interests of the company. Those duties may point towards self-reporting and cooperating, because that is often what best serves the company. At the same time, the director may be one of the individuals whose conduct is under examination. Acting properly in the company’s interest and protecting your own position are not always the same thing, and a director cannot resolve that tension by ignoring it.
None of this means a director or employee should obstruct an investigation. It means they should understand, early and clearly, that the corporate resolution is not theirs, and act with their own advice rather than the company’s.
Doogue + George acts for individuals, including directors, officers and employees, whose conduct is under examination in corporate investigations. If your company is considering or undergoing a self-report and your own conduct may be in question, speak to us before you take part in anything.
If my company self-reports, am I protected?
No. The civil resolution is the company’s. Cooperation generally requires the company to disclose the individuals involved and to assist in any prosecution of them.
Do the company’s lawyers act for me?
No. They act for the company. Their duty is to the company’s interests, which may diverge from yours. You should obtain independent advice.
Is what I say in an internal investigation protected?
Usually it is covered by the company’s legal professional privilege, but that privilege belongs to the company and the company can waive it. Once waived, your account may be disclosed to the AFP.
When should I get my own lawyer?
As early as possible, ideally before you participate in any internal investigation or speak to investigators. Early advice is the most protective step.
Doogue + George has acted in some of Australia’s most significant bribery and corruption matters. Bill Doogue is ranked by Doyle’s Guide as one of the preeminent criminal defence lawyers in Australia and is listed in Best Lawyers for criminal law.
Bill is a consultant for the firm of Lewing Lowing Sullivan in Port Moresby (Papua New Guinea) in relation to bribery and corruption and transnational crime, advising on the Australian and cross-border dimensions of regional white collar matters.
“This content is for informational purposes only and should not be considered legal advice. Please consult a qualified criminal defence lawyer before making any decisions regarding your matter”
