AUSTRALIA Trends and Developments Contributed by: Dennis Miralis, Kartia Zappavigna, Dr Emma Collins and Henry Yu, Nyman Gibson Miralis
vent foreign bribery” in 2024. As of October 2025, there has been no publicly confirmed enforcement action. The relevant legislation, the Crimes Legislation Amendment (Combatting Foreign Bribery) Act 2023 (Cth), came into effect on 8 September 2024, enshrin - ing the offence in Australian Commonwealth criminal legislation. The offence was introduced, in part, in response to concern from the Organisation for Eco - nomic Co-operation and Development Working Group on Bribery regarding Australia’s low level of enforce - ment given the high-risk regions and sectors in which Australian companies operate. It is hoped that the new legislation will address that deficiency and bring Australia in line with the United Kingdom’s legislation, which has been in place since 2011. Along with the introduction of the new corporate offence of failure to prevent foreign bribery the Act also expanded the existing foreign bribery offences to capture a greater range of corporate conduct and increased the penalties for corporations found guilty of an offence. The reach of the legislation is wide. The new offence makes companies liable for failing to prevent foreign bribery by an “associate”, which is broadly defined as including an employee, contractor, agent, subsidi - ary or controlled entity of the corporation, or a per - son that otherwise performs services on behalf of the corporation. The last category captures individuals and entities that are not directly engaged or paid by a corporation. For example, indirect suppliers such as customs agents who are engaged by a supplier in another market may fall within this definition. This is also an absolute liability offence, meaning there is no requirement for the prosecution to show that the company was otherwise involved, authorised or permitted the offence. As a result, unless a company can demonstrate that it has “adequate procedures” in place to prevent bribery, it could be held criminally responsible for the actions of third parties. On 28 August 2024, the Attor - ney-General’s Department published its “Guidance on adequate procedures to prevent the commission of
foreign bribery”, which provides companies with guid - ance on this issue. The guidance was written with the intention that it would be read as an industry and size-agnostic guide. This is explained and demonstrated with examples in the six broad principles of the guide, which are as listed: • fostering a control environment to prevent foreign bribery; • responsibilities of top-level management; • risk assessment; Since the legislation came into effect one year ago, there has been no publicly announced enforcement action, and it remains to be seen how this new tool will be utilised. This is perhaps unsurprising given the complexity and logistical challenges posed by these kinds of investigations. Nevertheless, the new offence has compelled an important shift in corporate culture from reactive compliance to proactive prevention. The extent to which global political developments may also impact upon Australia’s appetite and ability to enforce Australian legislation in foreign jurisdictions is unclear. The US, previously a leader in the area, has radically changed its own position this year. In June 2025, the Department of Justice (DOJ) released guidelines limiting enforcement action under the For - eign Corrupt Practices Act to ensure American com - panies are not unduly burdened. Instead, the focus is on “conduct that directly undermines US national interests”. Whistle-blower protections Whistle-blower protections can be a critical tool in the fight against corruption. However, Australia’s whistle- blower protection regime is currently spread across several pieces of legislation at both the Common - wealth and state levels, with commentators, such as the Australian Law Council, describing it as a “com - plex web of overlapping and often inconsistent fed - eral and state/territory legislation that has developed disharmoniously”. • communication and training; • reporting foreign bribery; and • monitoring and review.
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