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  • Writer's pictureJames Beaton

Update on Foreign Bribery Offences in Australia

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Australia recently made significant changes to its foreign bribery laws.

The most significant change introduced by the Crimes Legislation Amendment (Combatting Foreign Bribery) Act 2024 (Cth) (the Act) is the new indictable offence for corporations that fail to prevent foreign bribery by their associates. This measure holds companies directly liable for the foreign bribery activities of their employees, external contractors, agents, and subsidiaries, unless the business can demonstrate that it had 'adequate procedures' in place to prevent the commission of foreign bribery by its associates. This is an absolute liability offence, meaning that the corporation will be liable for the offence even where it did not know it occurred.

The Attorney-General is required to publish guidance on the type of measures that are likely to constitute adequate procedures before September 2024. However, the guidance will not be binding and will likely be provided at a level of abstraction that will not absolve corporations from having to determine for themselves that adequate procedures are in place within their organisations.

The Act also broadens the scope of the Australian foreign bribery offence to capture bribery for the purpose of obtaining a personal advantage, whether or not for the person committing the offence. It is also no longer required to prove the offender intended to influence a foreign public official in the course of their official duties. The definition of a foreign public official is also expanded to include candidates to be a foreign public official.

It is critical for Australian businesses to ensure they have robust protections in place before the amendments come into effect on 8 September 2024. Offences carry maximum penalties of at least $33 million per contravention for corporations (or if higher, the value of the benefit or 10% of annual turnover). Organisations should review their operations for key areas of concern and ensure that their contractual arrangements, policies, and procedures are adequate. 

Partner, Dispute Resolution, MinterEllison



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