Australia: A fresh approach on the horizon

Scott Harris

As Australia’s engagement in international business and commercial transactions has grown, there have been calls to enhance its anti-bribery and corruption laws. This is to ensure Australia’s legislative approach adapts to the evolving global market.

Recognizing this issue, the Federal Government has committed significant funds to maintain a strong regulatory approach to corporate crime.

In 2015, the Senate referred an inquiry into foreign bribery to the Senate Economics References Committee. Although this lapsed at the end of the 44th Parliament as a result of the general election, the new government has readopted the inquiry. The Committee is due to report by 30 June 2017.

Reforms we expect to see

The inquiry has led to a focus on the provision regarding bribery of a foreign public official, which is in Division 70 of the Australian Criminal Code. While the provision has broad jurisdictional scope — Australia was among the first jurisdictions to introduce corporate liability for defective “corporate cultures” — experience has shown the need to address challenges and concerns around corporate crime and non-compliance.

The submissions to the inquiry are indicative of the changes we expect in the coming years, namely:

Broadening the provision’s scope

At present, the provision addressing foreign bribery applies only to bribery of a foreign public official. Many of the submissions propose expanding this to include private instances of bribery.

There have also been proposals to introduce an “associate” provision, akin to the UK legislation, to allow greater regulation of foreign subsidiaries and intermediaries.

Removal of the facilitation payment defense

Australia has a defense for the offense of bribery of foreign public officials in circumstances where the benefit was minor, where the conduct was to secure performance of a routine action, and where records were kept of the transaction. The subjective nature of this defense causes uncertainty, and it is likely we will see the defense abolished so that Australian businesses have greater clarity on how they should conduct their business.

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