Modest moves to amend Australian foreign Bribery laws

The Attorney-General’s Department yesterday released proposed amendments to the existing Australian foreign bribery laws. Though they fall short of creating a new global benchmark for bribery and corruption laws, they are nevertheless welcomed.

Since 1999, Australia has sought to criminalise bribery of foreign public officials by implementing legislation consistent with its obligations as a signatory to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the Anti-Bribery Convention). However, the legislation in its current form has been fraught with evidentiary barriers making it difficult to successfully prosecute individuals. Australia has subsequently experienced extremely low levels of enforcement.

What are the proposed amendments?

The Australian Government is seeking submissions on the following:

  • extend the definition of foreign public official to include candidates for office;
  • remove the requirements that the benefit/business advantage must be ‘not legitimately due’ and replace it with the concept of ‘improperly influence’ a foreign public official;
  • extend the offence to cover bribery to obtain a personal advantage;
  • create a new foreign bribery offence based on the fault element of recklessness;
  • create a new corporate offence of failing to prevent foreign bribery;
  • remove the requirement of influencing a foreign public official in the exercise of their official capacity; and
  • clarify that the offence does not require the accused to have a specific business or advantage in mind, that business or an advantage can be obtained for someone else.1

The most significant of these proposals is the introduction of a new corporate offence for “failing to prevent bribery of a foreign public official.”2 This means that an organisation will be presumptively guilty unless it can prove it had adequate procedures in place designed to prevent bribery of a foreign public official.

The definition of “foreign public official” has been extended to include “an individual standing or nominated (whether formally or informally) as a candidate to be a foreign public official.”3 This is something new and it will be interesting to see how this will be interpreted in any subsequent prosecutions.

These proposed changes are expected to improve the effectiveness in addressing foreign bribery and remove possible impediments to successful prosecutions.

What do these proposed changes really mean?

The reality is Australian companies engaging in international activities will still be subject to tougher foreign bribery laws and active enforcers such as the US Department of Justice and the UK Serious Fraud Office.

These draft amendments do however incentivise Australian companies to review their existing bribery and corruption frameworks and to assess whether they have a proper system of internal controls and compliance in place to prevent bribery from occurring.

1. Australian Government, Attorney-General’ Department. Proposed amendments to the foreign bribery offence in the Criminal Code Act 1995. 4 April 2017. https://www.ag.gov.au/Consultations/Pages/Proposed-amendments-to-the-foreign-bribery-offence-in-the-criminal-code-act-1995.aspx
2. Crimes Legislation Amendment Bill 2017, Sch. 1, s.14
3. Crimes Legislation Amendment Bill 2017, Sch. 1, s.4

AUTHORED BY

Caroline Mackinnon

Caroline Mackinnon
Senior Manager, Sydney
T: +61 2 9248 9976
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Michael Shanahan

Michael Shanahan
Partner, Perth
T: +61 8 6363 7607
E: mshanahan