If the Government’s proposed amendments to Australia’s anti-bribery laws are passed by Federal Parliament in their current form, those amendments will expand the range of foreign bribery offences and will make it significantly easier for Federal prosecutors to prove offences both by individuals and by companies. Some of the key provisions in the proposed new laws include:
A new offence where a company is automatically guilty of a foreign bribery offence committed by an associate of the company. “Associate” is defined very broadly to include a corporate subsidiary or an employee, agent or contractor of the company or even anyone who performs services for or on behalf of the company. The company will be taken to have committed the bribery offence even if it had no knowledge of or involvement in the associate’s actions, those actions occurred entirely outside Australia and even if the associate has not been convicted of a bribery offence. The company’s only defence will be if it can prove that it had in place adequate procedures designed to prevent the commission of a bribery offence by any associate within or outside Australia. The draft legislation gives no indication what will constitute “adequate procedures”. This provision would be yet another Australian law where a party is presumed guilty of a criminal offence and has the onus of proving its innocence. The Federal Government will be required to publish guidance on the steps that a company can take that are designed to prevent an associate from bribing foreign public officials.
The definition of “foreign public official” would be expanded to include a person standing or nominated (whether formally or informally) as a candidate to be a foreign public official.
The bribery offence will be expanded so that it captures a benefit given or offered to another person with the intention of improperly influencing the foreign public official in order to obtain or retain business or an advantage. “Advantage” is defined very broadly. An advantage could be anything, whether material or not. “Improper influence” is the test in lieu of the current term “not legitimately due”.
A new recklessness offence would be inserted so that a person could be guilty of a bribery offence if the person had no intention to bribe but if they are aware of a substantial risk that a foreign public official may be improperly influenced in relation to obtaining or obtaining business or an advantage and it is unjustifiable to take the risk.
The bribery offence will be expanded to cover situations where a person bribes a foreign public official in their private capacity to obtain a personal advantage, rather than an advantage for say a particular business.
If the Bill becomes law, the anti-bribery provisions will be significantly expanded and it will be much easier for Federal prosecutors to prove offences. The proposed new “presumption of guilt” corporate offence makes a mockery of the protestations we have heard from various parliamentarians in recent years that they are entitled to the presumption of innocence when being accused of breaking various laws or parliamentary rules.
It will be critical that companies have in place “adequate procedures designed to prevent” offences. Companies with existing anti-bribery policies will need to review the wording of those policies. We will wait to see the guidance to be published by the Minister but it is unlikely that merely having an anti-bribery policy will be sufficient. We expect that companies will also need to be able to demonstrate that they carry out substantial education of their personnel, agents and contractors and have instituted appropriate documentation and process management procedures.
Please contact us if you wish to discuss implementing or reviewing anti-bribery policies and procedures.