AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
2019 Report In the OECD’s two-year follow-up report in December 2019, Australia was commend - ed for its implementation of a number of the Phase 4 Report recommendations, most nota - bly its detection of foreign bribery, aided by its enhanced protections for private sector whis - tle-blowers. However, there was continued concern about Australia’s low level of foreign bribery enforcement, given the size of Aus - tralia’s economy and the high-risk regions and sectors in which Australian companies operate, and doubts about Australia’s ability to impose effective, proportionate and dissuasive criminal penalties. 2021 Report In its 2021 Addendum to the above report, the OECD Working Group recognised Australia’s increased activity in prosecuting and investigat - ing foreign bribery cases, together with budget increases for the CDPP. However, it also noted that the predecessor to the Combatting Foreign Bribery Act had not yet been passed. 2022 Report The OECD’s 2022 Additional Written Follow-up Report to its Phase 4 report (published January 2023) recognised, amongst other things, Aus - tralia’s actions to develop procurement rules as they relate to debarment of companies and individuals convicted of criminal offences (such as foreign bribery), engagement with the pri - vate sector to develop guidance on compliance measures required to prevent foreign bribery, and continued enforcement activity, including against companies. Senate Committee Reports In March 2018, the Senate Economics Refer - ences Committee released its report regarding the effectiveness of Australia’s legislation gov -
erning foreign bribery. The report highlighted that Australia’s poor enforcement record suggested that foreign bribery offences were not being adequately enforced. Factors contributing to this lack of enforcement included the complex nature of the cases, lack of sufficient expertise, delays in investigative procedures, lack of company co-operation, and limited resources. Recom - mendations to improve the enforcement record included increasing one-off funding to agencies for the large and complex investigation of foreign bribery offences and to introduce a “failure to prevent” bribery offence and DPA regime. In February 2021, the Australian government published its response to the Committee Report, accepting many of the Committee’s recommen - dations and noting that the predecessor to the Combatting Foreign Bribery Bill was intended to address many of the issues raised. The Legal and Constitutional Affairs Commit - tee reported on the Combatting Foreign Bribery Bill in July 2023. Its recommendations included that the Combatting Foreign Bribery Act or its explanatory notes clarify that the fact foreign bribery has occurred does not, in itself, mean that “adequate procedures” were not imple - mented by the relevant body corporate. Royal Commission Into Misconduct in the Banking, Superannuation and Financial Services Industry Report More broadly, Australia’s enforcement environ - ment went through a period of intensification fol - lowing the Royal Commission into Misconduct in the Banking, Superannuation and Financial Services Industry, the final report of which was delivered on 1 February 2019. Following the commissioner’s critique of ASIC’s failure to take tougher action against companies and individu - als, ASIC announced a stronger enforcement
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