12 December 2019 Jane Larner BusinessCrimeLinks

Take Two: Australia revives reforms to foreign bribery laws and proposes DPA scheme

Key features of the Bill

As recently reported by Allens, on 2 December 2019 the Australian Government tabled the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 (the Bill) in the country's Senate. An earlier version of the Bill was tabled in 2017, but lapsed in July 2019 when a federal election was called.

The Bill is intended to align Australia's foreign bribery laws and corporate crime enforcement regime with the international high-water mark, including by:

  • creating a UK-style corporate offence of failing to prevent foreign bribery by “associates” (including employees, agents, contractors and subsidiaries of body corporates), to which absolute liability would apply, unless a corporation has adequate procedures to prevent bribery of foreign public officials in place; and
  • introducing a UK- and US-influenced Deferred Prosecution Agreement (DPA) scheme for a range of corporate crimes, including foreign bribery and money laundering, to incentivise companies to self-report and cooperate with enforcement agencies in relation to serious corporate crime investigations.

The Bill also seeks to make it easier for enforcement agencies to prosecute foreign bribery in Australia by significantly amending existing foreign bribery laws, including by:

  • extending the definition of “foreign public official” to include candidates for political office;
  • removing a requirement that a foreign public official be influenced 'in the exercise of their official' duties for the offence to be made out;
  • providing that the offence is made out, not only if a person offers a bribe to obtain a 'business advantage, but also if they do so to obtain a “personal advantage”; and
  • replacing a requirement that a person give a benefit an advantage that is “not legitimately due” for the offence to be made out, with the simpler requirement that a person must seek to “improperly influence” a foreign public official.
    The Australian Parliament is in recess until February 2020 and will consider the Bill early next year.
Draft Guidance

As an accompaniment to the Bill, the Australian Attorney General published the Draft Guidance for public consultation. The Draft Guidance is intentionally broadly consistent with the UK Ministry of Justice's equivalent Guidance, so that Australian companies that already have developed their anti-bribery policies with reference to international guidelines easily can incorporate additional policies relevant to the Australian context.

The Draft Guidance sets out a principles based approach to anti-bribery compliance, and provides that companies should put in place proportionate and effective procedures to prevent bribery from occurring within their business. It further provides that the following “fundamental elements” should be included in every corporation's anti-bribery policy:

  • Risk assessment: Corporations should conduct regular anti-bribery risk assessments to assess their bribery risk profile. Those that face significant bribery risk should adopt more extensive anti-bribery policies and procedures than corporates facing lower risk;
  • Management dedication: Senior management and the board should play a critical role in developing, implementing and promoting anti-bribery policies;
  • Due diligence: Due diligence procedures should be applied before entering into new business relationships, and should be more comprehensive in high risk situations;
  • Communication and training: Bribery prevention policies should be communicated and made accessible to all employees and associates;
  • Confidential reporting and investigation: Corporations should adopt an effective reporting and response system to consider and respond to concerns raised by stakeholders; and
  • Monitoring and review: Corporations should regularly monitor, review and adjust their anti-bribery policies and procedures. 
Comment

If the Bill is passed, Australian enforcement agencies may bring more foreign bribery cases and adopt different prosecutorial strategies, as the Bill's revisions to existing anti-bribery laws would remove significant barriers to prosecutions. In addition, if the DPA scheme comes into force, enforcement agencies may be open to expediting some ongoing investigations (in the foreign bribery space or elsewhere) to resolution via a DPA.

Authors:

Rachel Nicolson, Partner, Allens
Christopher Kerrigan, Partner, Allens   
Andrew Wilcock, Senior Associate, Allens
Lewis Winter, Associate, Allens