Niall Hearty of Rahman Ravelli considers Australia's attempt to finally update its bribery legislation.
Australia is looking to introduce a new foreign bribery law that includes a corporate failure to prevent offence and a stricter definition of corrupt payments.
New legislation has been tabled that, if it became law, would overhaul Australia's current foreign bribery law, which has been in force for decades.
The proposed new legislation, the Combatting Foreign Bribery Bill, would remove the current requirement for prosecutors to prove that a defendant had a specific advantage in mind when paying a bribe. It would also introduce the offence of "improperly influencing" a foreign official.
There has been an acknowledgement in government that the current requirement to show that a corrupt payment was "not legitimately due" has been difficult to prove in situations where the bribe has been disguised as a consulting fee. The new legislation has been devised to address this. The proposed new law would also widen the definition of a foreign public official to include prospective candidates for public office.
Australian lawyers, however, have indicated that they believe the most significant change would be the proposed new corporate offence of failing to prevent bribery. This is based on the offence contained in the UK's Bribery Act and includes the defence of having "adequate procedures" in place. The Australian government has said it believes this measure will lead to more companies devising and implementing compliance programmes. It has said it will issue guidance on the adequate procedures defence within six months of the Bill becoming law.
While the maximum penalties for foreign bribery will remain the same under the proposed legislation - 10% of annual turnover for companies and 10 years in prison for individuals – it is hoped the change to the law will lead to more effective prosecution of bribery.
Recent years have seen groups such as the International Bar Association and the Organisation for Economic Cooperation and Development criticise Australia's limited enforcement of foreign bribery offences. Only seven people and three companies have been convicted under the country's existing foreign bribery law since its introduction 24 years ago.
The Australian parliament failed in 2017 and 2019 to pass attempts to change its foreign bribery law. Commentators believe the latest Bill will be passed now that the government has dropped plans for a deferred prosecution agreement (DPA) regime. This had led to objections from those who believe that DPAs give corporates the chance to escape punishment for their wrongdoing.
While Australia is not set to follow the UK in introducing DPAs, it does appear that it has examined the UK's Bribery Act when it comes to creating a failure to prevent offence. It has recognised the need to both tighten and widen the scope of its bribery laws and now – after a number of attempts – looks set to make this happen.
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