With the political sideshow out of the way for the time being, attention might get back to the core of Terence Cole’s Iraqi kickbacks inquiry. And when it does, one of the many interesting questions to consider is what might happen to AWB if it is eventually convicted of a criminal act. The present share price of just under $4 could suddenly seem very expensive.

Companies, like people, can be done over by the courts as criminals. While the common seal and the boardroom table don’t get hauled off to prison, the life of the corporation can still become very unpleasant.

Commissioner Cole made it plain that he is well aware of possible criminal action by AWB when he gave his reasons for admitting evidence about AWB’s dubious payments to a Pakistani agent. AWB didn’t want anything about Pakistan mentioned, arguing that it was outside Cole’s terms of reference.

In giving AWB Senior Counsel his reasons for admitting the evidence back on January 31, Cole referred to the Criminal Code Act 1995 (fascinating bedside reading), noting that the Code applies to bodies corporate in the same way as it applies to individuals and that a body corporate may be found guilty of an offence, including one punishable by imprisonment.

Cole went to some length reviewing what might be of interest about the Code, but this one paragraph does enough to illustrate the possibilities:

Section 12.2

If a physical element of an offence is committed by an employee, agent or officer of a body corporate acting within the actual or apparent scope of his or her employment, or within his or her actual or apparent authority, the physical element must also be attributed to the body corporate.

The Code is also rather generous in pinning the blame on the company as a whole for acts committed by individuals. Terence Cole quoting the Code again:

The means by which such an authorisation or permission may be established include:

(c) proving that a corporate culture existed within the body corporate that directed, encouraged, tolerated or led to non-compliance with the relevant provision; or

(d) proving that the body corporate failed to create and maintain a corporate culture that required compliance with the relevant provision.

Cole goes on to quote at length some of the AWB-commissioned Arthur Andersen report ironically titled “Integrity Risk Review of the International Marketing Group”. No, there wasn’t much risk of integrity. This report was a confidential exhibit of which only portions were read onto the public record. It rang just about all the bells and posted all the possible red flags imaginable about what was going on, but, surprise, surprise, AWB took no apparent notice. Cole quotes parts relating to both Iraq and Pakistan:

“In my view, matters related to the transaction with the Pakistani agent P2 reflect upon the culture which might have been current at relevant times, and thus may be material to my consideration of any possible criminal offences arising under the Commonwealth Code where culture may be a means of establishing the authorisation or permission…”

Of course Cole’s job is only to decide “whether the question of criminal or other legal proceedings should be referred to the relevant Commonwealth, State or Territory agency” – it would then be up to various plods to prepare briefs for sundry DPPs.

Given that the Prime Minister has publicly declared his verdict that AWB was a lying and duplicitous organisation, we are left to speculate about what Cole might think is referable. Just over the Tigris deal, there could be questions of money laundering, false documents, false statements, perjury and there might be some sort of banking regulation about converting money and sending it to Iraq.

Life could become much more interesting for AWB and its shareholders yet.

Peter Fray

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