AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
nection with the foreign company carrying on business in Australia (Section 186). 3.3 Corporate Liability Under Australian law, a company, as a separate legal entity, can be convicted of bribery offenc - es. Companies and individuals can also be held liable for the same offence. The Criminal Code has specific provisions which address corporate criminal responsibility. Under these provisions, for a company to be criminally responsible for an offence, the physical and mental (or “fault”) elements must be attributed to the company as follows: • the physical element is attributed if that ele - ment was committed by an employee, agent or officer of the company acting within the actual or apparent scope of that person’s employment or within their actual or apparent authority; and • the key fault element (intention) is attributed if the company expressly, tacitly or impliedly authorised or permitted the commission of the offence. The means by which that may be established include proving that a “high managerial” agent intentionally engaged in the relevant conduct or proving that a cor - porate culture existed that directed, encour - aged, tolerated, or led to non-compliance with the relevant provision. In addition to these general attribution rules, since 8 September 2024, companies have strict liability for failure to prevent foreign bribery by their associates unless they can prove a defence of adequate procedures: see 2.1 Bribery . In other Australian jurisdictions, generally speak - ing, a corporation may be found guilty of a crimi - nal offence either on the grounds of vicarious
liability or on the basis that the person who committed the acts and had the requisite men - tal state was the directing mind and will of the company. In the M&A context, a successor entity will not be held liable for offences by the target entity that occurred prior to the merger or acquisition. However, if the transaction was effected by a share sale, the target entity will remain liable even after the acquisition. Two specific defences are available for the offence of foreign bribery under Section 70.2(1) of the Criminal Code. Both are very narrow. The first defence (Section 70.3) is enlivened where the provision of the benefit is permitted or required by a written law of the place where the conduct occurred. The second defence (Section 70.4) is in respect of facilitation payments. If the value of the ben - efit was of a minor nature, and made to expedite or secure the performance of a “routine govern - ment action” of a minor nature, and a record of the details of the conduct was created as soon as practicable, a defendant will have a good defence against liability. Routine government action excludes a decision about the awarding of new business, continuing existing business, or the terms of new or existing business. Rather, it is an action commonly performed by the for - eign public official, such as granting permits or licences, processing government papers or pro - viding access to utilities. 4. Defences and Exceptions 4.1 Defences
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