Optus was “negligent” when it criminally failed to disclose $5,400 in political donations during development applications, prosecutors say, and its efforts at reform have been “deficient”, court documents show.
Optus has admitted four criminal offences for failing to disclose a series of donations to the Liberal and Labor parties while seeking approval for work in the Snowy Mountains ahead of the ski season.
The donations, made between September 2014 and April 2015, included $150 for a breakfast meeting with the then New South Wales premier, Mike Baird, $1,500 for a boardroom lunch with Baird, $500 for a lunch event with the Liberal MP Andrew Constance, $750 for an event with the Liberal MP Pru Goward, $1,500 for a lunch event with the then Labor opposition leader, Luke Foley, and $1,000 for a Liberal state election lunch event.
An internal review suggested Optus staff did not realise that payments for ticketed Labor and Liberal events constituted political donations, according to court documents.
The donations were later disclosed to NSW electoral authorities. The case, first reported by the Sydney Morning Herald, is before the NSW land and environment court.
In an apology to the court, the Optus vice-president, Greg Sheridan, conceded the company’s systems had not been strong enough to ensure donations were declared as required.
“Optus accepts that it did not, at the relevant times, have in place systems that were adequate to ensure that the requirements of the EPA were met,” Sheridan wrote.
Prosecutors say Optus’s statement was an admission of negligence – a claim Optus’ lawyers strongly rejected.
“Mr Sheridan recognises that there was a failure to have adequate systems in place for meeting the disclosure requirements … but does not admit that Optus was so indifferent to its disclosure obligations as to amount to criminal negligence,” Optus’ lawyers told the court.
The company said it had taken significant steps to ensure donations were properly reported since being alerted to the omissions in 2017. It commissioned a comprehensive internal review to work out how the donations had been omitted, wrote to contractors to remind them of their disclosure obligations during development applications, retained law firm Clayton Utz to advise it of its obligations and provide staff training, and implemented new policies on political donations and planning approvals.
But prosecutors said Optus’ efforts were “arguably deficient”, because the company’s new donations policy “does not purport to apply to ‘donations and gifts made by an employee or contractor in a personal capacity’.”
“It is not difficult to imagine a scenario where a political donation might be made by an executive director who might also be in a position to receive a bonus in relation to a successful development,” prosecutors said in their submission to the court.
Prosecutors also said the resource giant AGL, when it faced similar offences, introduced a policy to stop corporate funds from being used for political donations at any level.
“The defendant has not implemented a policy of not making political donations… and there are arguably deficiencies within the Optus political donations policy as articulated above,” prosecutors said. “Therefore, the risk of future breaches is not entirely eliminated.”
Optus argued banning donations from individuals would “probably” not be lawful. It said its policy stipulated that individuals must make it clear they are not representing the views of Optus.
Optus is facing fines of up to $44,000 for each offence. The NSW land and environment court will hand down its sentence at a later date.
