The Australian Government is exploring possible reform options to improve the effectiveness of the current foreign bribery regime. The proposed reforms will significantly lower the bar for corporate prosecutions for foreign bribery in Australia.
Some of the key changes proposed include:
- Broadening the definition of 'foreign public official' to include candidates for public office.
- A foreign public official need only be 'improperly influenced'. Demonstrating that the benefit or advantage was 'not legitimately due' will no longer be necessary.
- Intention isn't necessary with the proposed recklessness offence. It will be enough that a person was reckless in their conduct of improperly influencing a foreign public official.
- Following in the footsteps of the UK's Bribery Act, one of the most significant proposals is a corporate offence of failing to prevent foreign bribery.
A company will be automatically liable for foreign bribery committed by employees, agents or contractors (including those operating overseas), unless it can demonstrate that it had adequate internal compliance measures and procedures in place to prevent the bribery from occurring.
The available sanctions are severe and include jail time and fines of up to $1.8 million for individuals and exceeding $18 million for companies.
It's critical that companies take another look at their compliance and due diligence procedures and ask themselves whether they would meet the "adequate procedures" test. If not, give us a call.
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