AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
approach and established an “Office of Enforce - ment” in July 2019 to lead its enforcement func - tion. This led to a significant increase in the number of enforcement actions being brought by ASIC, including a 64% increase in civil pen - alty proceedings and a 36% increase in criminal proceedings commenced from 2018 to 2020. As expected, ASIC’s Royal Commission-related enforcement activity subsequently reduced, and in 2022 ASIC announced that it had filed its final civil case following its enforcement investiga - tions arising from the Royal Commission. More generally, in the 12 months ending on 30 June 2024, ASIC commenced 146 investi - gations, saw 166 criminal charges laid by the CDPP, secured eight custodial sentences and saw recoveries of AUD92 million in civil penalties imposed by the courts. One of ASIC’s endur - ing priorities is governance and directors’ duties failures. ASIC’s active interest in potential Cor - porations Act contraventions by directors and officers in the foreign bribery space is expected to continue. 9.2 Likely Changes to the Applicable Legislation of the Enforcement Body The authors expect to see in the coming years the first investigations of foreign bribery under Australia’s strengthened offence provisions enacted under the Combatting Foreign Bribery Act. The Combatting Foreign Bribery Act did not implement a DPA scheme, and the Federal Opposition was unsuccessful in seeking to amend the draft legislation to introduce one. The scheme, modelled on the UK scheme, was designed to encourage greater self-reporting, and was based upon reparation, remedia - tion, financial penalties and implementation of
effective compliance programmes. The govern - ment which enacted the legislation stated that it was premature to enact a DPA scheme until the strengthened foreign bribery provisions had been given time to work. Any further discus - sion of a DPA scheme therefore seems unlikely, at least during the current term of government which extends until mid-2025. The Australian Law Reform Commission (ALRC) recently considered the current corporate crimi - nal responsibility regime in Australia and identi - fied key recommendations to improve the regime in a report published in April 2020. In particular, it recommended standardising attribution of crimi - nal responsibility to corporations and simplifying Part 2.5 of the Criminal Code to make it easier for the prosecution, while still allowing corpora - tions to avoid liability by demonstrating that they took reasonable precautions to prevent miscon - duct. In relation to foreign bribery liability, the ALRC supported the (then-proposed) “failure to prevent” offence, and recommended introduc - ing a debarment regime, to prevent convicted companies from obtaining contracts. Further, in September 2024, the Commonwealth introduced the Anti-Money Laundering and Counter-Terrorism Financing (AML/CTF) Amend - ment Bill 2024, which aims to simplify and clarify the anti-money laundering regime, and extends its breadth to additional services including those provided by lawyers, accountants, real estate agents, and trust and company service provid - ers. These measures will have flow-on effects on the fight against corruption, as corruption gen - erates illicit funds often requiring laundering. In particular, the laws would require solicitors and barristers to report “suspicious matters” (includ - ing information relevant to the investigation of an offence) to AUSTRAC.
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