AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
ies of AUD57.5 million in civil penalties imposed by the courts. One of ASIC’s enduring priorities is gov - ernance and directors’ duties failures. ASIC’s active interest in potential Corporations Act contraventions by directors and officers in the foreign bribery space is expected to continue. The authors expect to see in the coming years the first investigations of foreign bribery under Australia’s strengthened offence provisions enacted under the Combatting Foreign Bribery Act. The Combatting Foreign Bribery Act did not imple - ment a DPA scheme, and the Federal Opposition was unsuccessful in seeking to amend the draft legisla - tion to introduce one. The scheme, modelled on the UK scheme, was designed to encourage greater self- reporting, and was based upon reparation, remedia - tion, financial penalties and implementation of effec - tive compliance programmes. The government which enacted the legislation stated that it was premature to enact a DPA scheme until the strengthened foreign bribery provisions had been given time to work. 9.2 Likely Changes to the Applicable Legislation of the Enforcement Body The Australian Law Reform Commission (ALRC) recently considered the current corporate criminal responsibility regime in Australia and identified key recommendations to improve the regime in a report published in April 2020. In particular, it recommended standardising attribution of criminal responsibility to corporations and simplifying Part 2.5 of the Criminal Code to make it easier for the prosecution, while still allowing corporations to avoid liability by demonstrat - ing that they took reasonable precautions to prevent misconduct. In relation to foreign bribery liability, the ALRC supported the (then-proposed) “failure to prevent” offence, and recommended introducing a debarment regime, to prevent convicted companies from obtaining contracts.
Further, on 29 November 2024, the Anti-Money Laun - dering and Counter-Terrorism Financing (AML/CTF) Amendment Act 2024 (the “AML/CTF Amendment Act”) was passed. The AML/CTF Amendment Act aims to simplify and clarify the anti-money laundering regime, and extends its breadth to additional services including those provided by lawyers, accountants, real estate agents, and trust and company service provid - ers. These measures will have flow-on effects on the fight against corruption, as corruption generates illicit funds often requiring laundering. In particular, the laws require solicitors and barristers to report “suspicious matters” (including information relevant to the inves - tigation of an offence) to AUSTRAC. In November 2024, the government released a draft exposure Treasury Laws Amendment Bill 2024 as a first step towards its 2022 election commitment to implement a public registry of beneficial ownership. The Bill proposes to amend the Corporations Act to enhance the transparency and disclosure of owner - ship in listed entities in Australia (including foreign-reg - istered entities), bringing aspects of Australia’s market transparency requirements into line with comparable jurisdictions. While the focus of the public registry of beneficial ownership is to increase transparency and support stronger enforcement of corporate money laundering and tax evasion, this will also have a posi - tive impact upon combating bribery and corruption. The government is currently considering submissions received during a consultation period on the Bill.
25 CHAMBERS.COM
Powered by FlippingBook