AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
Corporate Culture “Corporate culture” is yet to be judicially tested in this context, but is defined to mean “an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities take place”. A key aspect of corporate culture is looking beyond what the company says in its policy literature, to what it actually does in terms of its shared norms, values and how it manages risk. The diligent implementation of an appropriate compliance regime is therefore a critical factor to take into account when assessing corporate culture. In addition, a director’s duty to exercise reasonable care, skill and diligence would extend to taking rea - sonable care to ensure that the company has an appropriate risk management framework in place, including to manage bribery risk. Failure to Prevent Bribery The introduction of the failure to prevent foreign bribery offence (which carries the same penalties for compa - nies as the foreign bribery offence) and the “adequate procedures” defence now places greater emphasis on the need for companies to have appropriate compli - ance programmes in place commensurate with the organisation’s operations and risks. 8.2 Compliance Guidelines and Best Practices The Adequate Procedures Guidance sets out princi - ples for an effective foreign bribery compliance pro - gramme that may have bearing on whether a body corporate is able to establish a defence to the failure to prevent foreign bribery offence. It provides that: • all companies (regardless of size) require effective and proportionate procedures to prevent bribery, tailored to a corporation’s circumstances; and • indicators of an effective compliance programme include a robust culture of integrity, a clear pro- compliance tone from the top, a strong anti-bribery compliance function, effective risk assessment and due diligence procedures, and careful and proper use of contractors and other parties.
The Adequate Procedures Guidance suggests com - panies adopt the following fundamental elements in their programmes: • risk assessment; • management dedication; • due diligence; • communication and training; • confidential reporting and investigation; and • monitoring and review. Companies should be diligent in documenting their foreign bribery compliance processes and actions so they can clearly demonstrate the steps taken to pre - vent the commission of an offence, should a need to 9. Assessment 9.1 Assessment of the Applicable Enforced Legislation As Australia is a party to the OECD Anti-bribery Con - vention, the adequacy and enforcement of Australia’s anti-bribery legislation is subject to ongoing evalua - tion. OECD Working Group 2017 Report The OECD Working Group on Bribery published its Phase 4 Report for Australia in December 2017. The working group identified several achievements and positive developments, noting that Australia had stepped up its investigation and enforcement of for - eign bribery since 2012 (when the working group had been critical of Australia’s poor enforcement record). Key recommendations included ensuring that the AFP and CDPP have adequate resources to effec - tively enforce the foreign bribery offence, proactively pursuing criminal charges against companies, and encouraging companies to develop and adopt ade - quate internal controls and compliance programmes. rely upon the defence arise in future. 8.3 Compliance Monitorships Not applicable.
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