18. Fraud
18.1 Definitions
In this clause 18, Fraud, Fraudulent and Fraudulent Activity means dishonestly obtaining a benefit, or causing a loss, by deception or other means, and includes suspected, alleged or attempted Fraud.
18.2 Fraud
(a) The Recipient:
(i) must not engage in any Fraudulent Activity; and
(ii) is responsible for preventing and detecting Fraud.
(b) The Recipient must report in writing within 5 Business Days to the Department any Fraudulent Activity involving the Project.
(c) In the event of a Fraud, and in consultation with the Department, the Recipient must develop and implement a strategy to investigate the Fraud, based on the principles set out in the Australian Government Investigation Standards. The Recipient must undertake the investigation at the Recipient’s cost.
(d) Following the conclusion of an investigation, where the investigation finds the Recipient (including an employee of the Recipient or a subcontractor) has acted in a Fraudulent manner, the Recipient shall:
(i) where:
(A) money has been misappropriated, pay to the Department or the Project the full value of the Funds that have been misappropriated; or
(B) an item of property has been misappropriated, either return the item to the Department or the Project or, if the item cannot be recovered or has been damaged so that it is no longer usable, replace the item with one of equal quality;
(ii) refer the matter to the relevant Partner Country police or other authorities responsible for prosecution of Fraudulent Activity; and
(iii) keep the Department informed, in writing, on a monthly basis, of the progress of the recovery action.
(e) Following the conclusion of an investigation, where the investigation finds that a party other than the Recipient (including an employee of the Recipient or a subcontractor) has acted in a Fraudulent manner, the Recipient shall, at the Recipient’s cost make every effort to recover any Funds or funded property acquired or distributed through Fraudulent Activity, including without limitation, the following:
(i) take recovery action in accordance with recovery procedures, including civil litigation, available in the Partner Country;
(ii) refer the matter to the relevant Partner Country police or other authorities responsible for prosecution of fraudulent activity; and
(iii) keep the Department informed, in writing, on a monthly basis, of the progress of the recovery action.
(f) If the Recipient considers that after all reasonable action has been taken to recover the Funds or funded property and full recovery has not been achieved or recovery has only been achieved in part, the Recipient may seek approval from the Department that no further recovery action be taken. The Recipient must provide to the Department all information, records and documents required by the Department to enable the Department delegate to make a decision on whether to approve non-recovery of Funds or funded property.
18.3 Survival
The Recipient’s obligations under this clause 18 survive the termination or expiration of this Agreement.
19. Dispute resolution
19.1 Dispute resolution
(a) Subject to clause 18.2, the parties agree not to commence any legal proceedings in respect of any dispute arising under this Agreement, which has not been resolved by informal discussion, until the procedure provided by this clause 18 has been followed.
(b) The parties agree that any dispute arising during the course of this Agreement will be dealt with as follows:
(i) the party claiming that there is a dispute will send the other a written notice setting out the nature of the dispute;
(ii) the parties will try to resolve the dispute through direct negotiation, including by referring the matter to persons who have the authority to intervene and direct some form of resolution; and
(iii) if within 40 Business Days from the date of the notice issued under clause 18.1(b)(i):
(A) there is no resolution of the dispute;
(B) there is no agreement on submission of the dispute to mediation or some alternative dispute resolution procedure; or
(C) there is a submission to mediation or some other form of alternative dispute resolution procedure, but there is no resolution within 20 Business Days of the submission, or within such further extended time as the parties may agree in writing before the expiration of the 20 Business Days,
then, either party may commence legal proceedings.