The Crimes Legislation Amendment (Combatting Corporate Crime) Bill was tabled in the Senate in December 2017 following which it was referred to the Standing Committee on Legal and Constitutional Affairs Legislation Committee. The Committee reported back to the Senate on 20 April 2018 but since then there has been no movement. The Bill came back to the Senate on 2 December 2019.
The Combatting Corporate Crime bill, if passed as currently drafted, will strengthen Australia’s foreign bribery laws, introduce a Deferred Prosecution Agreement (DPA) scheme for resolving serious corporate criminal misconduct and amend the definition of the term ‘dishonesty’.
The bill introduces a new strict liability offence for companies who fail to prevent foreign bribery (similar to Section 7 of the UK Bribery Act). Companies may have a defence if they can show that they had ‘adequate procedures’ in place to prevent foreign bribery.
Australian corporations engaging in business in foreign markets will need to carefully consider the provisions of the new legislation and install appropriate measures to prevent bribery of foreign public officials. This will necessarily include an awareness raising program for all personnel and systematic analysis to look for, and identify transactions that are suggestive of payments to foreign public officials. The significance of these proposed changes to Australia’s foreign bribery laws means that the Bill, if passed, will shape future foreign bribery prosecutions, whilst also guiding internal corporate frameworks and policies with respect to best practice in foreign bribery safeguards and compliance.
The introduction of a DPA regime will provide a significant incentive for companies to self-report and proactively cooperate with Australian regulators and law enforcement agencies in relation to investigations into serious corporate crimes in which they are involved. The Commonwealth DPP would need to be satisfied that entering into a DPA is in the public interest and any settlement will be subject to approval by an “approving officer”. The definition of ‘dishonesty’ in the Criminal Code Act will be amended to mean “dishonest according to the standards of ordinary people” which will be a simpler test than the current definition.
The Government has released draft guidance to assist corporations to comply with the legislation as it is currently drafted. Submissions are due by the end of February 2020. FCX will keep subscribers updated on developments in the new legislation as it passes through Federal parliament.