Draft guidance on adequate procedures to prevent the commission of foreign bribery
On 2 December 2019, the Australian Government introduced the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 into Parliament. The Bill would introduce a new corporate offence for failing to prevent an associate of a body corporate from committing a foreign bribery offence by.
However, the offence will not apply if the body corporate can show it had adequate procedures in place designed to prevent a foreign bribery offence being committed.
Section 70.5B of the Combatting Corporate Crime Bill 2019 proposes that the Attorney-General must publish guidance on the steps that a body corporate can take to prevent an associate from bribing foreign public officials.
To inform the approach to this guidance, the Australian Government developed draft adequate procedures guidance.
The draft guidance is in three parts:
- Part 1 sets out the foreign bribery offence and the proposed corporate offence of failing to prevent foreign bribery. It includes examples to show how the foreign bribery offences operate.
- Part 2 sets out draft guidance on the types of measures a body corporate could implement and steps it could take to prevent an associate from bribing a foreign public official. This guidance is principles-based, rather than a checklist for compliance. It is designed to generally apply to corporations of all sizes and in all sectors.
- Part 3 provides examples to show how policies and procedures to prevent foreign bribery could be applied in practice.
In preparing this guidance, the Australian Government considered the UK Government's guidance that accompanies its 'failure to prevent' under section 7 of the UK Bribery Act, as well as guidance published by the Australian Trade Commission, United States Department of Justice, International Organization for Standardization, OECD, UNODC, World Bank and Transparency International UK.
Draft guidance on adequate procedures to prevent the commission of foreign bribery consultation paper
Submissions received in relation to draft guidance on adequate procedures to prevent the commission of foreign bribery
The Australian Government will review feedback received through the consultation process before finalising the guidance. A final version of the guidance will be published before the new corporate offence for foreign bribery commences.