Removing the Carrot and Extending the Stick: Proposed Amendments to Australia’s Anti-Bribery Laws

On the 6th of December 2017, the Australian Government introduced the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017 into the Senate. This Bill seeks to make a number of changes to the existing Federal Criminal Code Act (1995) in order to broaden the reach of the legislation, remove restrictive requirements, and facilitate the investigation and prosecution of foreign bribery.

The act of bribing a foreign public official is criminalized within Division 70 of the Criminal Code Act (1995). In brief, the elements of the offence of foreign bribery (section 70.2) as the legislation currently stands make it an offence if:

  1. A person;
  2. provides, causes benefit to be provided, offers, promises, or causes offer or promise of benefit to be provided to another; and
  3. The benefit is not legitimately due to the other; and
  4. The person has the intention of influencing a foreign public official in the exercise of the official’s duties as foreign public official;
  5. In order to retain business or business advantage which is not legitimately due.

Although the current anti-bribery legislation has been in place since 1999, there have been few successful prosecutions under this law. It is anticipated that this amendment Bill, which is currently before the Senate and expected to be passed into law later this year, will change this. Below is a comparison between the current state of the legislation covering the offence of foreign bribery in Australia and the main proposed amendments:

Current Legislation – Criminal Code Act 1995 Main proposed amendments
‘Foreign public official’ is defined in section 70.1 but does not include candidates for office Broaden definition of ‘foreign public official’ to include candidates for office
Offence only if benefit ‘is not legitimately due…’ The ‘not legitimately due’ requirement is removed and replaced with the broader ‘improperly influencing’ a foreign public official
Offence if person has intention of influencing the foreign public official in the exercise of the official’s duties as a foreign public official The ‘in the exercise of the official’s duties’ requirement is removed
Offence is confined to bribery with intention of influencing a foreign public official in the exercise of the official’s duties as a foreign public official in order to obtain business or business advantage Extended the offence to bribery with intention of obtaining personal advantage as well
‘Advantage’ will be extend to advantage of any kind (not limited to property)
No provision for liability of body corporate for failure to prevent foreign bribery of associate New offence: where bribery was for the gain of the body corporate and it was not prevented, body corporate will be held liable
No Commonwealth Deferred Prosecution Agreement Scheme (DPA) Implements a DPA Scheme: Commonwealth DPP can negotiate with a person who has engaged in serious corporate crime to come to an agreement with specified conditions (DPA). If conditions are adhered to, the person will not be subsequently prosecuted in relation to the offences in the DPA.
Breach of DPA may result in prosecution or renegotiated terms.

How will this facilitate prosecution of foreign bribery offences?

The above list of proposed amendments are not exhaustive. In any case, those amendments will go a long way in advancing investigation and prosecution of offences of foreign bribery.

Two of the main impediments to the successful prosecution of foreign bribery offences are proving that the person gave the bribe with the intention of influencing a foreign public official and that the benefit was not legitimate due. The ‘not legitimately due’ requirement is often difficult to prove because bribes can be disguised as legitimate fees paid in the course of doing business. As such, this requirement will be substituted with the broader concept of ‘improperly influencing’ as a means to circumvent this difficulty. To further facilitate ease of prosecution, the new section attaches the fault element of intention to the acts of ‘providing, offering or promising a benefit’ to another person, such that these types of conduct carry the element of intention automatically.

The expansion of ‘advantage’ to mean any kind of advantage (not limited to property) will also facilitate the prosecution of foreign bribery, by encompassing a variety of other advantages which can be used as the currency of the bribe, such as elevations to positions of power, the conferral of honors or priority attention.

The proposal to penalize bodies corporate for failing to prevent bribery of foreign public officials undertaken by its associates for the profit or gain of the body corporate, reveals a move toward corporate accountability and responsibility, illustrating that the days of corporate willful blindness are fast disappearing. This amendment seeks to prevent instances in which a parent company, who is a beneficial owner of a subsidiary, stands to benefit from the acts of foreign bribery undertaken by its subsidiary, whilst avoiding liability through the separate legal entity doctrine. Despite this, a body corporate will still be able to avoid liability if it can prove that it has adequate procedures in place to prevent foreign bribery by its associates. Whilst this is a necessary caveat to avoid the overreach of absolute liability, there is a fear that these corporate entities may utilize weakly enforced procedures as ‘window dressing’ or superficial means to evade liability. As such, Courts that face these cases in the future have a critical role to play in ensuring that the ‘adequacy’ of procedures relates not only their implementation, but the rigor of their enforcement.

Overall, these proposed amendments, which broaden legislative definitions and remove burdensome restrictions, represent the Australian Government’s attempt to address foreign bribery by facilitating the prosecution and investigation of foreign bribery allegations. It remains to be seen whether this will be successful.

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