Draft guidance on adequate procedures to prevent the commission of foreign bribery

Closed 9 Jun 2024

Opened 29 Apr 2024

Overview

The Crimes Legislation Amendment (Combatting Foreign Bribery) Act 2024 passed through Parliament in February 2024 and introduces a new corporate offence of failure to prevent foreign bribery under section 70.5A of the Criminal Code Act 1995. The offence will apply where an associate of a corporation has committed bribery for the profit or gain of the corporation. However, a corporation will not be liable under the ‘failure to prevent’ offence if it can prove it had ‘adequate procedures’ in place designed to prevent its associates from committing foreign bribery.

Under the legislation, the Attorney-General must publish guidance material on what steps corporations can take to prevent an associate from bribing foreign public officials.

We are consulting on the draft guidance before it is published later this year.

Draft guidance

The draft guidance outlines the fundamental elements to consider when implementing an effective anti-bribery compliance program. It is a principles-based document, rather than a checklist of compliance, that is designed to be of general application to corporations of all sizes and in all sectors. The draft guidance is based on the principle that the obligation to implement such procedures will be proportionate to the circumstances of the corporation, including scale, location and level of risk identified.

In preparing this guidance, the Australian Government considered the United Kingdom Government’s guidance that accompanies its ‘failure to prevent’ offence under section 7 the UK’s Bribery Act 2010 (the UK Bribery Act), as well as the guidance published by Transparency International UK, designed to assist corporations with their compliance with the UK Bribery Act.

Previous consultation

In 2020, we publicly consulted on an earlier version of this guidance. We assessed the feedback from this consultation and incorporated it into the current guidance, where relevant.

Why we are consulting

We would like to ensure the guidance is fit-for-purpose for the Australian business community.

Who we want to hear from

This consultation is open to all members of the public. We are particularly interested in hearing from members of the Australian business community whose interests may intersect with the risk of foreign bribery.

Interests

  • Criminal law
  • Bribery