Updated July 8, 2026
Updated July 8, 2026
What the AFP’s civil settlement pathway gives a company, what it does not, and why advising a board otherwise is a mistake.
By Bill Doogue, Director and Accredited Criminal Law Specialist, Doogue + George
Since the AFP published its April 2026 guideline on resolving matters with cooperating corporations, the shorthand has taken hold quickly. People are calling it Australia’s deferred prosecution agreement regime. For anyone advising a board, that shorthand is not just loose, it is dangerous, because it suggests a level of protection the company is not actually getting. The mechanism is real and useful. It is also narrower than a DPA, and the gap is where the risk lives.
Many of us who practise in this area of law have been arguing for a long time that a DPA was a good idea. Investigations proceed at a glacial pace and then the Court process is so slow that you often end up with different Prosecutors, different Investigators arguing about something that is lucky if it is less than 10 years ago.
In jurisdictions that have them, such as the United Kingdom and the United States, a deferred prosecution agreement works inside the criminal process. A charge is brought, or prepared, and then held in abeyance while the company complies with agreed conditions, often a financial penalty, cooperation, and compliance reforms. If the company meets the conditions, the prosecution is discontinued and there is no conviction. The agreement is approved and supervised by a court, and once it is complete it bars the prosecutor from pursuing the company for the specified conduct. The key features are a defined charge, judicial oversight, and finality on the criminal exposure.
Australia consulted on a DPA scheme for the Commonwealth Director of Public Prosecutions some years ago. It was drafted, a code of practice was circulated, and then it stalled. During the 2024 foreign bribery reforms the government decided it remained premature to introduce one. As things stand, Australia has no DPA scheme.
Faced with that absence, the AFP has used the civil powers it already holds. Under the Proceeds of Crime Act 2002 (Cth), the AFP Commissioner is a proceeds of crime authority. Where a corporation cooperates and the public interest supports it, the AFP will treat a non-conviction-based resolution under that Act as the optimal investigation outcome. The resolution is civil. It takes the form of orders such as a pecuniary penalty order, a forfeiture order or an unexplained wealth order, recorded in a Deed of Settlement and given effect by consent orders that a court approves.
So the company can resolve the proceeds of crime exposure, relinquish the benefit, pay, and avoid a criminal conviction. That is a genuine outcome. But notice what it is built on: civil confiscation powers, not a deferral of a criminal charge.
There is no charge held in abeyance. A DPA defers a prosecution. The POCA resolution does not touch the criminal charge at all. The company’s potential criminal liability is not compromised, deferred or extinguished by the civil resolution. It sits separately.
It binds the AFP, not the CDPP. The guideline expresses the AFP’s view of the optimal investigation outcome. The decision to prosecute is the CDPP’s, taken independently and in accordance with its own duties. A civil resolution is the likely outcome where cooperation is genuine. It is not a statutory bar to prosecution, and it cannot be.
There is no statutory immunity. A completed DPA bars prosecution for the specified conduct. The POCA resolution carries no equivalent statutory protection. What a company has is the AFP’s stated position and, in practice, the strong disincentive against the CDPP later prosecuting a corporation that cooperated. That is meaningful, but it is not the same as immunity, and it should not be presented to a board as if it were.
We have all seen prosecutions that have been influenced by media or political pressure. If it is not actually off the table then someone will make a call to use it.
The court is not bound. The consent orders must be approved by a court with jurisdiction. The court keeps a discretion and cannot be compelled to make the orders. The agreed position between the company and the AFP is a proposal to the court, not a foregone conclusion. Rarely but not vanishingly so you will see a Court not accept consent orders for many reasons. My guess if that these matters would be listed before common sense Judges to start with but I can think of one initiative in Victoria that went really well with a group of Judges. A bit of time passed and a new group of Judges were passed the baton and the system collapsed.
Set against those limits, the upside is real and worth stating plainly:
The advice a general counsel gives should match the mechanism. Do not tell the board that self-reporting buys a deferred prosecution agreement or an immunity, because neither exists. The honest framing is this. Cooperation makes a civil, no-conviction resolution the likely path and substantially lowers the risk of a corporate prosecution, in exchange for full disclosure, waiver of privilege, cooperation against individuals, and relinquishment of the benefit. The residual risks, particularly to individuals and the preserved prosecution discretion, are real and need to be weighed and thought through before any step is taken.
Doogue + George advises corporations and their officers on bribery, foreign bribery and proceeds of crime matters. If you are weighing whether to self-report, we can advise on the realistic upside and the residual exposure before you commit to a course you cannot completely reverse.
Is the AFP’s pathway a deferred prosecution agreement?
No. A DPA defers a criminal charge on conditions and, once complete, bars prosecution. The AFP’s pathway is a civil settlement under proceeds of crime law and does not defer or extinguish any criminal charge.
Does a civil resolution stop the company being prosecuted?
Not as a matter of law. The decision to prosecute remains with the CDPP and is taken independently. A civil resolution is the likely outcome where cooperation is genuine, but it is not a statutory bar.
Does the company have to admit guilt to resolve the matter?
No. A non-conviction-based resolution involves no plea and no conviction. The Deed of Settlement may include warranties about the truthfulness of the information provided. The AFP will want to publicly announce the facts though.
Who approves the resolution?
A court with jurisdiction makes the final consent orders, and retains a discretion to do so. The agreement between the company and the AFP is a proposal to the court.
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”
