On 9 August 2023, the AICD provided a submission to the Attorney General's Department on the Crimes Legislation Amendment (Combatting Foreign Bribery) Bill 2023 (Bill).
The AICD has engaged with government on previous iterations of these proposed draft reforms and welcomes the re-introduction of the Bill to the Senate.
The AICD strongly supports Government’s efforts to enhance the effectiveness of Australia’s foreign bribery laws. Foreign bribery and corruption causes significant harm to the governance of societies and economies abroad, as well as distorting competition and the integrity of markets.
The key points in our submission included:
- The AICD supports the amendments proposed to the principal foreign bribery offence in section 70.2 of the Criminal Code Act 1995 (Criminal Code);
- The AICD supports the introduction of a new corporate offence of failing to prevent foreign bribery by an associate;
- The AICD reiterated concerns however with certain aspects of the failure to prevent foreign bribery offence, including:
- The proposed legal burden of proof for body corporates in relation to the ‘adequate procedures’ defence. The AICD urges government to consider that any burden of proof imposed on a defendant be an evidentiary burden rather than a legal burden; and
- The inclusion of ‘subsidiaries’ within the definition of ‘associate’. The AICD recommends that government consider excluding ‘subsidiaries’ from the definition of ‘associate’ or alternatively, clarify that it is not the objective of the offence to impose liability on a body corporate simply on the basis of corporate ownership. In the AICD's view, attributing liability to a body corporate for an associate’s foreign bribery misconduct should be contingent on the substantive nature of the relationship between the corporation and the associate.
- The AICD reiterated support for a ‘Deferred Prosecution Agreement’ (DPA) scheme, included in the previous iteration of the draft legislation, now omitted from this Bill, as a mechanism to incentivise self-reporting of foreign bribery misconduct detected by corporations. The AICD encouraged government to re-consider its adoption as part of this package of reforms.
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