AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
Lanka. It was alleged that between 2009 and 2016 the men conspired to arrange the pay - ment of more than AUD304,000 to foreign government officials to win contracts for the supervision of two infrastructure projects in Sri Lanka worth over USD8,8 million. How - ever, the CDPP withdrew the charges in May 2023 whilst the proceedings were still at the early committal stage. • In August 2023, an Australian mining compa - ny, Oz Minerals Ltd, which had self-reported and been investigated by the AFP in relation to alleged foreign bribery, agreed to (civil) confiscation orders to the value of at least AUD9.3 million. The allegations concerned the actions of employees of a foreign subsidi - ary that may have bribed foreign officials to obtain mining rights in Cambodia between 2006 and 2009. This is the first resolution of a foreign bribery matter in Australia by way of consent orders under the POCA. • In September 2024, the AFP dropped its long-running investigation into mining com - pany Sundance Resources, which had been accused of bribing government officials in the Republic of Congo between 2006 and 2008. The matter was reported upon sensationally in the press when the AFP’s investigation commenced. However, the AFP announced that its investigation “did not establish suf - ficient, admissible evidence to refer a brief of evidence to the [CDPP]”, illustrating the difficulties Australian authorities face in gath - ering admissible evidence to prove foreign bribery offences (particularly prior to the 2024 amendments). 7.6 Level of Sanctions Imposed Although there has been a steady increase in the level of enforcement action for bribery and corruption offences in recent years, in particular foreign bribery, there is still some way to go. Bol -
stering the resources and abilities of the dedi - cated fraud and anti-corruption teams within the AFP will assist, as will the reforms enacted under the Combatting Foreign Bribery Act.
8. Compliance Expectations 8.1 Compliance Obligations
Under Australian law, the corporate crimi - nal responsibility provisions are structured to encourage companies to have sound com - pliance programmes. This is because, if an employee, officer or agent engages in the rel - evant conduct, the company may potentially be held liable if, among other things: • it had a corporate culture that directed, encouraged, tolerated or led to non-compli - ance with the relevant provision; or • the employee, officer or agent was a “high managerial agent” and the company failed to exercise due diligence to prevent their conduct. Corporate Culture “Corporate culture” is yet to be judicially tested in this context, but is defined to mean “an atti - tude, 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, val - ues and how it manages risk. The diligent imple - mentation 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 reasona - ble care, skill and diligence would extend to tak -
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