AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
ing reasonable care to ensure that the company has an appropriate risk management framework in place, including to manage bribery risk. Failure to Prevent Bribery The introduction of the failure to prevent for - eign bribery offence (which carries the same penalties for companies as the foreign bribery offence) and the “adequate procedures” defence now places greater emphasis on the need for companies to have appropriate compliance programmes in place commensurate with the organisation’s operations and risks. 8.2 Compliance Guidelines and Best Practices The Adequate Procedures Guidance sets out principles for an effective foreign bribery com - pliance programme that may have bearing on whether a body corporate is able to establish a defence to the failure to prevent foreign bribery offence. It provides that: • all companies (regardless of size) require effective and proportionate procedures to prevent bribery, tailored to a corporation’s circumstances; and • indicators of an effective compliance pro - gramme include a robust culture of integrity, a clear pro-compliance tone from the top, a strong anti-bribery compliance function, effective risk assessment and due diligence procedures, and careful and proper use of contractors and other parties. The Adequate Procedures Guidance suggests companies adopt the following fundamental ele - ments in their programmes: • risk assessment; • management dedication; • due diligence;
• communication and training; • confidential reporting and investigation; and • monitoring and review. Companies should be diligent in documenting their foreign bribery compliance processes and actions so they can clearly demonstrate the steps taken to prevent the commission of an offence, should a need to rely upon the defence arise in future. 8.3 Compliance Monitorships Not applicable. As Australia is a party to the OECD Anti-bribery Convention, the adequacy and enforcement of Australia’s anti-bribery legislation is subject to ongoing evaluation. OECD Working Group 2017 Report The OECD Working Group on Bribery published its Phase 4 Report for Australia in December 2017. The working group identified several achievements and positive developments, not - ing that Australia had stepped up its investiga - tion and enforcement of foreign bribery since 2012 (when the working group had been critical of Australia’s poor enforcement record). Key recommendations included ensuring that the AFP and CDPP have adequate resources to effectively enforce the foreign bribery offence, proactively pursuing criminal charges against companies, and encouraging companies to develop and adopt adequate internal controls and compliance programmes. 9. Assessment 9.1 Assessment of the Applicable Enforced Legislation
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