Proposed amendments to the foreign bribery offence in the Criminal Code Act 1995
Consultation
The Australian Government explored possible reform options to improve the effectiveness of the offence in addressing foreign bribery, and to remove unnecessary barriers to successful prosecution.
These reforms would create an incentive for companies to implement more effective measures to prevent bribery and promote a culture of integrity. It would also involve guidance for business on effective compliance programs to prevent bribery. Work is also underway in relation to a proposed model for a deferred prosecution agreement scheme in Australia, which may assist with enforcement of the foreign bribery offence.
Background
On 4 April 2017, the Minister for Justice, the Hon Michael Keenan MP, released a public consultation paper on proposed reforms to Australia’s foreign bribery regime.
Foreign bribery is inherently difficult to detect and enforce. Offending is often offshore, with evidence hard to identify and obtain. It can be easily concealed—with bribes disguised as agent fees or other seemingly legitimate expenses.
Australia has been a committed party to the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the Anti-Bribery Convention) since 1999. The Anti-Bribery Convention obliges States parties to criminalise the bribery of foreign public officials and implement a range of related measures to make this criminalisation effective.
Australia has given effect to these obligations through the foreign bribery offence in section 70.2 of the Criminal Code Act 1995, which carries significant penalties for individuals and companies. The offence in its current form poses challenges for typical cases of foreign bribery, which may involve the use of third party agents or intermediaries, instances of wilful blindness by senior management to activities occurring within their companies and a lack of readily available written evidence.