Australia vs. Foreign Bribery – Teething Pains
23 April 2015
In February 2015, Australia commenced its second foreign bribery prosecution in relation to the bribery of a foreign public official, almost four years after the commencement of Australia’s first foreign-bribery prosecution against Securency and Note Printing Australia Pty Ltd. The implicated individuals have extensive terrorist connections, which further calls into question issues such as dealing in the proceeds of crimes and money laundering, which are often intertwined with bribery and corruption charges. Notably, this prosecution coincides with the Australian Government’s introduction of several key changes to Australia’s foreign bribery laws in March 2015. This was followed closely by the OECD report on Australia’s compliance record in April 2015. Despite taking into account some of the proposed legislative amendments, the OECD report noted remaining concern over Australia’s lack of action regarding compliance enforcement.
In March 2015, Australia introduced to Parliament the Crimes Legislation Amendment Bill 2015, which expands the scope and applicability of Australia’s foreign bribery laws by clearly removing the intent requirement of influencing a “particular” foreign official. At the same time it formally included the “knowingly concerned” test as an additional form of secondary liability, which enables the prosecution of individuals who intentionally and knowingly involve themselves in offending conduct, while having knowledge of the essential elements of the offence. It would appear that Australia’s government is revving up its foreign corruption laws to provide somewhat of a sharper bite, bolstered with a new prosecution to drive the point home.
However, whether Australia’s bite lives up to its bark remains to be seen. The OECD report was published on April 13, 2015, hot on the heels of the new prosecution and introduction of the Bill. While the report praised Australia for improving certain anti-corruption related infrastructures and awareness, it nonetheless pointed out that Australia was still lacking on the execution front, though it did not include Australia’s new foreign bribery prosecution in its discussion. The report also did not seem impressed with Australia’s legislative amendments, calling Australia’s attempts to clarify the intent requirements regarding the bribery of a particular official to be “a minor technical amendment.” Furthermore, the report noted that Australia lacked clear evidence of enhanced enforcement, prosecution of companies under Australia’s corporate liability provisions, and action on the question of facilitation payments and enforceable “record keeping” offences. As such, it will be interesting to see whether Australia takes this criticism to heart and fully utilizes Australia’s ramped up foreign bribery provisions in the near future.
