Revisiting and re-situating deferred prosecution agreements in Australia: lessons from England and Wales

Responding to corporate wrongdoing through criminal investigation and adjudication can be risky, costly, protracted, and ultimately ineffective in addressing and altering problematic behaviour. In an effort to mitigate these issues, deferred prosecution agreements (DPAs) are likely to be introduced in Australia, enable the ‘settling’ of criminal proceedings between the Commonwealth Director of Public Prosecutions and corporations. This article analyses the mooted scheme of DPAs, looking at its core purposes, animating principles, and placement in the wider scheme of corporate accountability. It reflects on the development and embedding of DPAs in England and Wales, as this experience exposes certain matters which need to be clarified and resolved if DPAs are adopted in Australia. It parses DPAs along three principled lines, namely co-operation, compliance, and compensation, which are factors that make DPAs more likely to be offered and approved as well as representing what DPAs seek to encourage. This article updates and extends existing critiques in Australia and beyond, to provide new and concrete proposals for further reform of the proposed DPA scheme.