AUSTRALIA Trends and Developments Contributed by: Dennis Miralis, Kartia Zappavigna and Darren Pham, Nyman Gibson Miralis
The new-look foreign bribery offence significant - ly broadens the scope of conduct that could be caught by the Criminal Code and increases the potential punishment – increasing the risk to any company with operations outside of Australia. This offence does two things: • it makes companies liable for failing to pre - vent foreign bribery by an “associate”; and • it gives companies a defence for failure to prevent foreign bribery by an associate if they can show they had adequate procedures in place to prevent the commission of the offence. “Associate” is broadly defined and includes an employee, contractor, agent, subsidiary or con - trolled entity of the corporation, or a person that otherwise performs services on behalf of the corporation. The last category captures individuals and enti - ties that are not directly engaged or paid by a corporation. For example, indirect suppliers such as customs agents who are engaged by a supplier in another market may fall within this definition. This is also an absolute liability offence, meaning there is no requirement for the prosecution to show that the company was otherwise involved, authorised or permitted the offence. As a result, unless the company can demon - strate that it has “adequate procedures” in place to prevent bribery, it could be held criminally responsible for the actions of third parties. On 28 August 2024, the Attorney-General’s Department published the “Guidance on ade - quate procedures to prevent the commission of foreign bribery” that was required within six
months of the Crimes Legislation Amendment (Combatting Foreign Bribery) Act 2024 passing. The new foreign bribery offence signals the gov - ernment’s intent to target corporate conduct. This intent was clear to see at Attorney-General Mark Dreyfus’s second-reading speech for the bill, on 22 June 2023, when he stated that the bill does not contain a deferred prosecution agree - ment scheme (DPAs), as: “When ordinary Australians commit crimes, they feel the full force of the law. However, under the deferred prosecution agreement scheme proposed by the former government, compa - nies that engaged in serious corporate crime, including foreign bribery, would have been able to negotiate a fine, agree to a set of conditions and have their cases put on indefinite hold.” Reforms to the AML/CTF regime On 11 September 2024, the federal government introduced the Anti-Money Laundering and Counter-Terrorism Financing Amendment Bill 2024 to Parliament (the “2024 AML/CFT Bill”). Australia’s current AML/CTF regime was intro - duced in 2006, and in 2007, Parliament com - menced the consultation processes for a second tranche of reforms to properly bring Australia in line with international standards set by FATF. Despite this initial flurry, the second tranche of reforms was never introduced and FATF found in 2015 and again in 2018 that there were key areas that remain unaddressed. However, in April 2023, the current Attorney- General announced public consultations on reforming Australia’s AML/CTF regime and bringing it in line with standards recommended by the FATF.
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