AUSTRALIA Trends and Developments Contributed by: Dennis Miralis, Kartia Zappavigna and Darren Pham, Nyman Gibson Miralis
their employees can be investigated by NACC for conduct that adversely affected a public offi - cial’s honest or impartial exercise of their official duties. If NACC investigates a private entity, it will have the power to: • compel the production of documents; • compel officers or employees to attend a hearing to give evidence; • search the company’s premises; • use covert investigative powers, including intercepting telecommunications; and • use surveillance devices and authorise covert law enforcement operations. Challenges, Lessons and Considerations for Private Entities With the shift in the regulatory environment, companies must be prepared and proactive in responding to these changes. Companies must be proactive by responding to two key requirements. • First, having “adequate procedures” in place, which includes improving their anti-bribery and corruption programme (ABC programme). • Second, having a “compliant corporate cul - ture”. Adequate procedures In light of the new foreign bribery law, it is crucial for companies to ensure that they have “ade - quate procedures” in place. This will involve developing, implementing, reviewing and updat - ing existing ABC programmes. The Attorney-General has now published guid - ance to assist corporations in this task. The guidance was written with the intention that it
would be read as an industry and size-agnostic guide. This is explained and demonstrated with examples in the six broad principles of the guide, which are as listed: • fostering a control environment to prevent foreign bribery; • responsibilities of top-level management; • risk assessment; • communication and training; • reporting foreign bribery; and • monitoring and review. Developing a compliant corporate culture Under the Criminal Code Act 1995, a company may be liable for an offence if it has a corporate culture that is directing, encouraging, tolerating or leading to the commission of bribery or cor - ruption or may lead to an offence. However, a company may have a defence if it can demonstrate that its corporate culture requires its officers, agents and associated individuals to comply with Australian anti-bribery and anti- corruption laws through adequate procedures, which ought to have been reasonably developed and implemented following the principles of the guide. A compliant corporate culture is more impor - tant than ever in Australia, as regulators such as ASIC and the ACCC are increasingly focussed on supervising and assessing culture, as they consider poor culture to be a cause of miscon - duct and risk management failure, and good cul - ture to be an important factor in discouraging such outcomes. Its importance has increased with the implementation of the foreign bribery amendments and introduction of the AML/CTF reforms, etc.
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