AICD submission on foreign bribery consultation

The Review sought views on whether the amendments introduced through the Crimes Legislation Amendment (Combatting Foreign Bribery) Act 2024 (Act) had achieved their intended deterrence and enforcement objectives, and whether further amendments or measures are necessary to improve the operation or enforcement of Australia’s foreign bribery laws.

Since the Act was passed there has been no enforcement action brought under, or judicial consideration of, the amendments it introduced. We therefore focused our submission on our support for the introduction of a Deferred Prosecution Agreement (DPA) scheme.

Our key points were:

• Improving effectiveness: DPAs would materially improve the effectiveness of the regime. Foreign bribery investigations can be highly complex and resource intensive. Overseas experience indicates a DPA scheme would incentivise self-reporting, cooperation and remediation, and therefore improve the efficiency of Australian foreign bribery enforcement. A DPA scheme is particularly critical in the context of the ‘failure to prevent foreign bribery by an associate’ offence where an entity may be liable for conduct committed by an associate operating in a foreign jurisdiction, including in circumstances where the conduct only comes to the corporation's attention after it has occurred.

• General support already established: A DPA scheme was proposed in both the 2017 and 2019 iterations of the Act, and was supported by the majority of responses in each of these consultations. When the Act was passed in 2024 without a DPA scheme, the Attorney-General at the time noted that a DPA scheme should be considered once the new laws had been given time to operate. In our view, an appropriate time period has passed, and a DPA scheme should now be considered.

• International alignment: A DPA framework would align Australia with comparable jurisdictions and Organisation for Economic Co-operation and Development (OECD) recommendations.

• Intersection with modern slavery review: We also recommended that a DPA framework be considered in light of the Attorney-General's recent proposal for a ‘failure to prevent modern slavery’ criminal offence with an accompanying DPA scheme. The AICD is firmly opposed to the introduction of a ‘failure to prevent modern slavery’ criminal offence for reasons that we will detail in our separate submission to that consultation. However, should the Government nevertheless pursue the ‘failure to prevent modern slavery’ offence, we consider it is critical that it be accompanied by an effective DPA scheme. In these circumstances, the AICD strongly urges consistency in Australia’s enforcement approach for ‘failure to prevent’ criminal offences in both the modern slavery and foreign bribery contexts.