What's next for Australia?
There is growing pressure on the AFP from within and outside Australia to increase its anti-bribery and anti-corruption efforts. This should lead the AFP to make significant efforts to hold persons and corporations accountable under the criminal law.
As more Australian businesses continue to expand into offshore markets, and with the AFP declaring foreign bribery a key strategic priority, it is likely that there will be more prosecutions of foreign bribery and other bribery and corruption offences such as false accounting offences and money laundering.
Australia continues to look for ways to enhance its ability to bring about enforcement outcomes. The Federal Government recently launched a series of reforms to strengthen Australia’s anti-bribery and anti-corruption regime, highlighting the need for companies to take a considered and proactive approach to bribery and corruption issues.
These reforms include the following.
Increasing whistleblower protections
The Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 was introduced into the Commonwealth Parliament in December 2017, and is currently before the Senate. If passed, it will amend the Corporations Act, consolidating and strengthening existing whistleblower protections in the corporate and financial sectors, and creating a specific protection regime for whistleblowers who disclose breaches of tax laws. The Whistleblowers Bill will also require all public companies and large proprietary companies to have a whistleblower policy covering certain prescribed matters, and to make that policy available to officers and employees.
Expanding the foreign public official bribery offence
The Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017 was introduced into the Australian Parliament in December 2017, and is currently before the Senate.
The Crimes Bill proposes a number of amendments to the offence of bribery of a foreign public official under the Criminal Code. The changes are designed to simplify and broaden the scope of the offence, and to remove practical and evidential barriers to successfully investigating and prosecuting individuals and corporations engaged in foreign bribery.
The main changes include:
- extending the definition of ‘foreign public official’ to include a person formally or informally standing or nominated as a candidate to be a foreign public official (as currently defined in the Criminal Code)
- removing the requirement that the foreign public official be influenced in the exercise of their duties as a foreign public official
- replacing the requirement that a benefit or business advantage be ‘not legitimately due’ with the concept of ‘improperly influencing’ a foreign public official to obtain or retain business or an advantage
- expanding the offence to cover bribery of a foreign public official to obtain a personal advantage rather than a business advantage, and to include conduct that was not intended to gain any particular advantage
- creating a new offence that would allow a corporation to be held strictly liable for foreign bribery committed by its associates for the profit or gain of the corporation.
Introducing a deferred prosecution agreement scheme
If enacted, the Crimes Bill will also introduce a Commonwealth deferred prosecution agreement (DPA) scheme. The DPA scheme will enable the Commonwealth DPP to enter into a DPA with a corporation that has engaged in certain serious corporate crimes, including foreign and domestic bribery offences.
Under the terms of the DPA, the corporation will be required to comply with a range of conditions in exchange for the Commonwealth DPP agreeing to not initiate proceedings against the corporation for the offences specified in the DPA. Entry into a DPA will be voluntary and will not require the corporation to admit guilt.
The proposed DPA scheme contains a variety of safeguards to prevent it from becoming a ‘free pass’ to corporate offenders. The Attorney-General's Department has developed a draft code of practice to provide practical guidance on the intended operation and implementation of the DPA scheme.