AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
2019 Report In the OECD’s two-year follow-up report in December 2019, Australia was commended for its implementa - tion of a number of the Phase 4 Report recommen - dations, most notably its detection of foreign bribery, aided by its enhanced protections for private sec - tor whistle-blowers. However, there was continued concern about Australia’s low level of foreign bribery enforcement, given the size of Australia’s economy and the high-risk regions and sectors in which Austral - ian companies operate, and doubts about Australia’s ability to impose effective, proportionate and dissua - sive criminal penalties. 2021 Report In its 2021 Addendum to the above report, the OECD Working Group recognised Australia’s increased activ - ity in prosecuting and investigating foreign bribery cases, together with budget increases for the CDPP. However, it also noted that the predecessor to the Combatting Foreign Bribery Act had not yet been passed. 2022 Report The OECD’s 2022 Additional Written Follow-up Report to its Phase 4 report (published January 2023) rec - ognised, amongst other things, Australia’s actions to develop procurement rules as they relate to debar - ment of companies and individuals convicted of crimi - nal offences (such as foreign bribery), engagement with the private sector to develop guidance on com - pliance measures required to prevent foreign bribery, and continued enforcement activity, including against companies. Senate Committee Reports In March 2018, the Senate Economics References Committee released its report regarding the effec - tiveness of Australia’s legislation governing foreign bribery. The report highlighted that Australia’s poor enforcement record suggested that foreign bribery offences were not being adequately enforced. Fac - tors contributing to this lack of enforcement included the complex nature of the cases, lack of sufficient expertise, delays in investigative procedures, lack of company co-operation, and limited resources. Rec - ommendations to improve the enforcement record included increasing one-off funding to agencies for
the large and complex investigation of foreign bribery offences and to introduce a “failure to prevent” bribery offence and DPA regime. In February 2021, the Australian government pub - lished its response to the Committee Report, accept - ing many of the Committee’s recommendations and noting that the predecessor to the Combatting For - eign Bribery Bill was intended to address many of the issues raised. The Legal and Constitutional Affairs Committee reported on the Combatting Foreign Bribery Bill in July 2023. Its recommendations included that the Combat - ting Foreign Bribery Act or its explanatory notes clarify that the fact foreign bribery has occurred does not, in itself, mean that “adequate procedures” were not implemented by the relevant body corporate. Royal Commission Into Misconduct in the Banking, Superannuation and Financial Services Industry Report More broadly, Australia’s enforcement environment went through a period of intensification following the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, the final report of which was delivered on 1 February 2019. Following the commissioner’s critique of ASIC’s failure to take tougher action against companies and individuals, ASIC announced a stronger enforcement approach and established an “Office of Enforcement” in July 2019 to lead its enforcement function. This led to a significant increase in the number of enforce - ment actions being brought by ASIC, including a 64% increase in civil penalty proceedings and a 36% increase in criminal proceedings commenced from 2018 to 2020. As expected, ASIC’s Royal Commission-related enforcement activity subsequently reduced, and in 2022 ASIC announced that it had filed its final civil case following its enforcement investigations arising from the Royal Commission. More generally, in the six months ending on 30 June 2025, ASIC commenced 132 investigations (with 202 ongoing), saw 69 criminal charges laid by the CDPP, secured three custodial sentences and saw recover -
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