21 September, 2015
In brief
- The Commonwealth is set to pass amendments to the laws against bribery of foreign public officials, which will make it easier to prosecute offenders.
- In particular, the proposed amendments will remove the requirement to prove that an accused intended to bribe a particular foreign public official.
- The changes are expected to be the first of several steps taken to bring Australian anti-bribery and corruption laws into line with international best-practice.
Proposed changes to laws against bribery of foreign public officials
On 12 August 2015, the Commonwealth House of Representatives passed the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015 (Bill). Among other things, the Bill proposes new measures that will close a legal loophole that enabled an individual charged with bribery of a foreign public official (FPO) to avoid liability by arguing that they did not intend to bribe an FPO because they did not know the identity of that FPO. The Bill will also clarify that it is unnecessary for a bribe to be successful.
On 19 August 2015, the Senate passed the Bill with a number of unrelated amendments. The Bill is now back before the House of Representatives for consideration.
Background to proposed amendments
Bribery of FPOs is often committed through a third party. This means that, whilst it may be possible to establish that a person offered or provided a bribe with the intent to induce a government agency to grant business or some other benefit not legitimately due, a defendant will often never meet or know the identity of the FPO to whom the bribe is offered or paid. Further, while a person may bribe an FPO with the intention of gaining or retaining business or a business advantage, often the bribery will be unsuccessful.
The proposed changes will clarify that, in order to establish the offence of bribery of an FPO, the prosecution does not need to prove that:
- the accused intended to bribe a particular FPO,
- any business or business advantage was, in fact, obtained or retained as a result of the bribery.
Ongoing Senate inquiry into foreign corrupt practices
Previously, on 24 June 2015, the Commonwealth Senate voted in favour of undertaking an inquiry into corrupt practices by Australian entities operating in foreign jurisdictions and the adequacy of Australia’s anti-bribery legislation to combat those practices. The terms of reference governing the inquiry primarily focus on the following key issues:
- the effectiveness of the existing legal framework in Australia for investigating and prosecuting foreign corrupt practices,
- the role of Government agencies in investigating and prosecuting foreign corrupt practices, and
- what additional actions can be taken to eliminate foreign corrupt practices by Australian persons and entities.
The ongoing Senate inquiry is analysing features of the US and UK anti-bribery and corruption laws, with a widely held view that Australia lags behind both models. With its Bribery Act, the UK has been described as having a ‘gold standard’ anti-bribery legislative model that focuses on ‘failing to prevent bribery’. The model has assisted the UK’s Serious Fraud Office in undertaking numerous successful prosecutions. In contrast, to date, only one prosecution relating to alleged foreign bribery offences has been brought in Australia.
The new measures described above, in particular removing the requirement for ‘intent’ on behalf of the defendant, are the first in what is expected to be several steps taken to improve enforcement of foreign bribery offences, and ensure that enforcement agencies are equipped with adequate prosecutorial power.
The Senate inquiry is due to table its final report by 1 July 2016.
For further information, please contact:
Elizabeth Macknay, Partner, Herbert Smith Freehills
elizabeth.macknay@hsf.com
