2016 looks to be a busy year for directors, executives and legal and compliance teams who need to be aware of developments in Australian anti-bribery law and compliance practice.
The Senate Inquiry into Australia’s implementation of the OECD Convention on bribery of foreign public officials, launched last June, is due to report by 1 July 2016. The terms of reference for the inquiry are broad, but four topics addressed by the inquiry will be of particular interest to company directors, executives, and legal and compliance teams.
The first is a mooted expansion to the scope of corporate criminal liability for the offense of bribery of a foreign public official. The inquiry is considering whether directors and senior managers should be personally liable for failing to implement a corporate culture of compliance with anti-bribery laws.
The inquiry is also considering whether Australian companies should be held liable for breaches of anti-bribery laws by foreign subsidiaries, agents or other related parties. The aim of such a change would be to encourage businesses to conduct anti-bribery due diligence on prospective overseas partners, and to ensure that compliance culture penetrates to overseas subsidiaries.
The second topic of interest is the prospect of Australian authorities publishing official guidance regarding corporate liability for a failure to implement a culture of compliance with anti-bribery laws. Regulators in the US and the UK publish equivalent guidance.
Thirdly, the inquiry is considering whether to remove the exception for so-called ‘small facilitation payments’ from the scope of the anti-bribery laws, in order to bring the laws into step with international best practice.
Finally, the inquiry is considering whether legislative measures could be introduced to encourage businesses to self-report breaches of anti-bribery law, akin to existing measures in Australian corporations and competition law.
There are two other developments to look out for during 2016. The Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016 (Cth), which substantially came into force on 1 March, introduced new offences for making false records in order to facilitate or conceal an illegitimate benefit or loss. The offences are very broad in their scope (they are not limited to bribery of foreign public officials) and apply outside Australia.
Finally, we continue to see increased regulatory and enforcement activity in Australia. The Australian Federal Police are reported to be conducting 30 active anti-bribery investigations, and we can expect to see the work of the recently-established Serious Financial Crime Taskforce and Fraud and Anti-Corruption Centre to emerge throughout the year.
It will be important for directors, executives and legal and compliance teams to remain abreast of these developments and consider their potential impact on their business.
Rachel Nicolson, Partner, Allens
Rachel is a Director of the UN Global Compact Network Australia and Chair of the Anti-Corruption Leadership Group, and is a Partner at law firm Allens.