Robert Wyld
Office:
Level 25
20 Bond Street
NSW 2000
City:
Sydney
Country:
Australia
Tel:
+61 2 8274 9593
Fax:
+61 2 8274 9500

Questions and Answers:

Who's Who Legal Thought Leaders - Investigations

Robert has practised in the area of bribery and corruption, commercial crime, cross-border investigations, prosecutions, sanctions, money laundering and tax fraud for nearly 30 years. His work has spanned Oceania, the Asia Pacific region, the Middle East and the Americas. Robert has been recognised as a leading anti-corruption lawyer at the 2017 Global Awards – Corporate LiveWire, and by Chambers Asia Pacific (2016–2017), Best Lawyers in Australia (litigation) Who’s Who Legal: Business Crime DefenceWho’s Who Legal: Investigations for several years and the Australia section of Who’s Who Legal: Thought Leaders – Investigations (2018).

DESCRIBE YOUR CAREER TO DATE.

My career started by working with Australian statutory authorities as their external prosecutor. I then started work for US law firms acting as their independent investigator where allegations of corruption occurred on energy and resources projects in Asia (this was before the days of international law firms having a global reach). I tended to work for non-Australian companies until the Australian Wheat Board scandal in the mid-2000s (paying kickbacks to the Iraq government for wheat sales under the United Nations Oil-For-Food Program) when Australian business started to appreciate the consequences of offshore risk. From that time onwards, my work has been on both the advisory side, looking at policies, procedures, ethics and training, and the regulatory side: the investigation and defence of prosecutions. I have also worked on a range of policy and pro bono work through the OECD and the International Bar Association (IBA), the most important of which was working with the leadership of the Afghanistan Independent Bar Association (with support from the German government) between 2015 and 2017 to create a set of practical anti-corruption guidelines for lawyers in Afghanistan and a training workshop in the Middle East supported by the Afghanistan Government and its legal profession.

ON WHAT TYPES OF ISSUES HAS YOUR PRACTICE BEEN FOCUSED IN RECENT MONTHS?

The issues that I have been focused on in recent months include ongoing advisory and training work for companies on their internal policies, work with the OECD and the IBA on a task force looking at the role of lawyers in cross-border transactions and defence work for clients subjected to external regulatory investigation and/or prosecution. I have also been involved with the IBA anti-corruption committee in drafting various submissions to the Australian government on legislative reforms.

HAVE YOU NOTICED A CHANGE IN PUBLIC ATTITUDES TOWARDS CORPORATE MALPRACTICE IN AUSTRALIA OVER THE PAST FEW YEARS?

There has been a distinct shift in public attitudes towards corporate misconduct. In the past, the Australian public tended to shrug its shoulders. Now, the power of traditional and social media and the apparent inability of parts of corporate Australia to behave ethically, let alone legally, has shifted the ground. Now companies are publicly being held to account, senior lawyers, CEOs and directors are being forced to resign and there is increased shareholder activism (by institutional investors) who regard corporate misconduct as an unacceptable stain on their investment and not to be tolerated. This shift is best illustrated by the overwhelming public desire to ensure whistleblowers in the private sector are respected and properly protected when they disclose corporate misconduct (which so often failed to occur in the past). The tendency, regrettably, is for governments and businesses in Australia to victimise and shoot the messenger rather than address the merits of the message.

A NUMBER OF LEGISLATIVE REFORMS REGARDING BRIBERY ARE SET TO COME INTO EFFECT SOON. WHAT EFFECT DO YOU EXPECT THESE TO HAVE?

The range of legislative reforms under consideration in Australia (revised foreign bribery offences, a new strict liability corporate offence of failing to prevent foreign bribery, a Commonwealth DPA scheme for serious financial criminal offences and enhanced private sector whistleblower protections) should cause Australian business to take a meaningful proactive approach to their operational risks, to identify those risks and to put in place procedures to minimise or avoid those risks. If they do not, the corporate veil down the supply chain, wherever the conduct occurred, is likely to be pierced by investigators and prosecutors.

THE PRIVATE SECTOR IS OFTEN CITED AS TAKING AN INCREASINGLY PREVENTATIVE, RATHER THAN REACTIVE, APPROACH TO COMPLIANCE. WHAT IS DRIVING THIS CHANGE?

Change is being driven by legislative reforms; investor, management and shareholder realisation that the pursuit of profit for “that one deal” at the expense of broader ethical considerations is no longer sustainable; and the fact that a corporate reputation, hard fought for and built up over many years, can be trashed in the eyes of the public, suppliers, customers, employees and governments by a single act (or a series of acts) which reflected the fact that no decision-maker asked one simple question: “Is this the right thing to do?”

OECD COUNTRIES HAVE MOOTED POSSIBLE CHANGES IN LIGHT OF THE PANAMA PAPERS REVELATIONS. WHAT STEPS WOULD BE MOST EFFECTIVE TO IMPROVE TRANSPARENCY?

For many years, numerous countries, not least the US, have not only allowed but encouraged opaque commercial structures to flourish. When this is combined with tax laws that allow for the redistribution of profit across jurisdictions, all of which is usually perfectly legal, then you have a recipe for social discontent. Lawyers are usually caught in the middle, acting on transactions that create legal structures and, more controversially, are then potentially used to hide assets or funds with or without the lawyers’ knowledge. Lawyers have long resisted obligations to disclose their clients’ affairs to authorities as that cuts through the very heart of a lawyer’s confidential relationship with a client and where relevant, legal professional privilege. There are domestic professional laws and rules governing how lawyers should conduct themselves in almost every jurisdiction. Most clearly state that a lawyer cannot and should not engage in work where the lawyer knows or suspects that the client is engaged in illegal or criminal conduct. Perhaps the importance of these existing rules need to be highlighted and a lawyer’s primary duty be clearly stated to be to the court and the administration of justice rather than a client. Lawyers should continue to act as a moral gatekeeper, prepared to say no to work, to a client and to lucrative fees when the conduct is or appears to involve potential illegality (wherever that conduct occurs). If they do not do so, then governments are increasingly likely to impose disclosure obligations on the legal profession in a way that threatens the inherent confidentiality of a lawyer/client relationship and the rule of law.

HOW DO YOU EXPECT THE FIELD OF INVESTIGATIONS TO CHANGE OVER THE NEXT FIVE YEARS?

I expect the practice of investigations into corporate misconduct to become increasingly specialised. It is likely to involve lawyers and advisers with a greater knowledge of the criminal justice system than currently exists in Australia. The public and social pressure on governments (to properly resource and fund) and investigators and prosecutors will be to hold companies and executives accountable in a way that, for the public, has failed to materialise in the past. This means companies, boards of directors and executive management must proactively understand, assess and address their corporate risk profile. If they do not, corporate and individual reputations are likely to be shredded in a very public way.

WHAT IS YOUR PROUDEST ACHIEVEMENT IN YOUR CAREER TO DATE?

Undertaking the anti-corruption work for the Afghanistan Independent Bar Association, referred to above.

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