Friday, 26 May 2017
With the AFP’s increased focus on combatting foreign bribery and corruption, companies need to closely examine their anti-bribery and corruption compliance programs to ensure they are adequate and effective in preventing bribery and corruption. Corporates operating in countries with a ‘highly corrupt’ score in the Transparency International Corruption Perceptions Index1 are at high risk. Companies operating in these high-risk jurisdictions should do everything possible to prevent foreign bribery, including but not limited to promoting a culture of integrity, setting the right tone at the top, implementing robust bribery and corruption policies and educating management and the board.

The AFP is responsible for investigating offences under Commonwealth law, including the offence of bribing a foreign public official under Division 70.2 of the Criminal Code Act 1995 (the Criminal Code). Corruption, including bribery of foreign public officials, is an area of high priority for the AFP, as demonstrated by the $15 million of additional funding allocated to them in May 2016 to tackle corporate foreign bribery. Foreign bribery is a serious criminal offence that carries heavy penalties for individuals and companies.

What has been done to date?

The AFP established the Fraud and Anti-Corruption Centre in 2014 (the Centre). The Centre enhances the AFP response to foreign bribery and other forms of corruption, bringing together 12 other Commonwealth agencies including the Australian Crime Commission, the Australian Securities and Investments Commission and the Australian Taxation Office.

Since 2014, the AFP has established an internal foreign bribery panel of experts. This panel is made up of senior investigators with experience in significant foreign bribery investigations. It provides expert advice on foreign bribery referrals and investigations, and conducts foreign bribery specific training and awareness raising activities.

More recently, a five-day conference for the specialised International Foreign Bribery Taskforce (IFBT) was held in Sydney. Law enforcement representatives from the AFP, the Federal Bureau of Investigations (FBI), the Royal Canadian Mounted Police (RCMP) and the United Kingdom’s National Crime Agency (NCA) discussed ways to tackle foreign bribery across international borders.

Further reforms under consideration

The challenges associated with detecting, investigating and prosecuting corporate crimes are well-recognised. AFP Commander Peter Crozier, Manager of Criminal Assets, Fraud and Anti-Corruption2 said:

"We know there are significant challenges in gathering evidence in these investigations, and that’s where the real benefit lies in the strong relationships forged with our overseas partners through taskforces like the IFBT."

The Australian Government is exploring possible reform options to the foreign bribery offence provisions. The reforms include: 
  • Increased funding for key agencies which respond to corruption, including establishing the Centre;
  • A $127 million reform package to better protect consumers by strengthening the Australian Securities and Investments Commission;
  • $128 million to fund the Serious Financial Crime Taskforce to lead the Commonwealth’s operational response to financial crime;
  • The proposed introduction of an Australian Deferred Prosecution Agreement scheme; and
  • Foreign bribery law reform, with proposed amendments to address operational challenges in investigating and prosecuting foreign bribery. These amendments include3:
    • Extending the definition of ‘foreign public official’ to include candidates for public office;
    • Introducing a more flexible standard of ‘improper influence’ to the foreign bribery offence;
    • Extending the foreign bribery offence to cover ‘bribery to obtain a personal advantage’;
    • Creating a new offence based on the fault element of ‘recklessness’;
    • Creating a new corporate offence of ‘failing to prevent foreign bribery’. (This was one of KordaMentha’s recommendations to the Senate Economics References Committee inquiry into foreign bribery and mirrors an offence that was introduced in 2009 under the UK Bribery Act);
    • Removing the requirement in the offence that the official be influenced in their official duties; and
    • Clarifying that the advantage can be obtained for someone else, and the accused need not have a specific advantage in mind.
These reforms should create an incentive for companies to implement more effective measures to prevent foreign bribery and promote a culture of integrity.

Want to know more?

KordaMentha Forensic has published previous articles on the proposed foreign bribery reforms including the introduction of a Deferred Prosecution Scheme and proposed amendments to the foreign bribery offence in the Criminal Code. KordaMentha Forensic can provide a free awareness session for your organisation about the reforms and the potential implications for your business. We can also provide an experienced and independent set of eyes to provide objective feedback and suggestions to enhance your current anti-bribery and corruption compliance program.
Further Reading:
3. Australian Government Attorney-General’s Department Consultation Forum, DPA Scheme and Foreign Bribery Reforms, 31 March 2017.