24 February, 2016
A Bill before the Commonwealth Parliament, if passed, will see Australia’s anti-bribery laws strengthened with a new books and records offence of intentional or reckless false dealing with accounting documents.
The Bill was recently before a Senate Committee which has recommended the Bill be passed.
PURPOSE OF AMENDMENTS
The proposed amendments follow OECD country reports which have criticised Australia’s record of enforcing its anti-bribery offences and, more recently, Australia’s ranking slip on Transparency International’s Corruption Perception Index, falling from 7th in 2012 to 13th in 2015.
While the false accounting offences have been introduced to meet an OECD Anti-Bribery Convention requirement, the text of the Bill is broader and potentially captures private bribery and secret commissions to non-public officials, consistent with the false accounting provisions in other jurisdictions.
Transparency International has called for the introduction of the false accounting offence to be hastened to support the existing anti-bribery laws in combatting corruption and lifting Australia’s moderate enforcement rating. The proposed amendments follow another recent reform aimed at increasing the ability to enforce the Australian anti-bribery provisions. The amendment to the Criminal Code Act 1995 (Cth) means that the prosecution need only show that a foreign pubic official was the intended recipient of a benefit not otherwise legitimately due, rather than needing to demonstrate a specific foreign public official was the intended recipient.
THE OFFENCE OF INTENTIONAL OR RECKLESS FALSE DEALING WITH ACCOUNTING DOCUMENTS
In essence, the Bill amends the Criminal Code Act 1995 (Cth) by introducing an offence of intentionally or recklessly dealing with accounting documents where a person:
- makes, alters, destroys or conceals an accounting document; or
- fails to make or alter an accounting document that the person is under a duty under Australian law to make or alter;
- which facilitates, conceals or disguises the provision of a benefit not legitimately due; and one or more of the following circumstances apply to the alleged offender:
- (a) the person is:
- (i) a company incorporated in Australia;
- (ii) an officer or employee of an Australian corporation performing their duties or carrying out their functions;
- (iii) acting in the course of providing services to an Australian corporation;
- (vi) a Commonwealth public official performing their duties or carrying out their functions; or
- (b) the person’s conduct occurs in or outside Australia, concerns matters or things outside Australia, or facilitates or conceals the commission of an offence against a Commonwealth law; or
- (c) the accounting document is in or outside Australia, is kept for Australian law purposes, or is kept to record the receipt or use of Australian currency.
- (a) the person is:
The amendment extends to conduct of foreign subsidiaries of domestic parent companies, their employees and agents. Where the alleged conduct occurs wholly outside Australia’s territory and the person alleged to have committed the offence is not an Australian citizen, Australian resident or corporation incorporated under Commonwealth, State or Territory law, then the Attorney-General must approve any intended prosecution.
SIGNIFICANT PENALTIES PROPOSED
For the intentional false accounting offence significant penalties are proposed with:
- individuals subject to 10 years imprisonment and/or a fine of up to $1.8m; and
- bodies corporate subject to a fine the greater of $18m, three times the value of any benefit provided or 10% of the annual turnover in the 12 month period preceding the offence.
TIMING OF THE PROPOSED AMENDMENTS
With the Senate Committee recommending that the Bill be passed on 3 February 2016, it is expected to pass both houses of Parliament shortly, and will be effective upon Royal Assent.
For further information, please contact:
Andrew Emmerson, Baker & McKenzie
andrew.emmerson@bakermckenzie.com
