Australia AGD Will ‘Shortly’ Publish Anti-Foreign Bribery Guidance

The guidance will help firms prepare for reforms that introduce ‘failure to prevent foreign bribery’ a new corporate offence from 8 September.

Australia’s Attorney General’s Department (AGD) will soon publish finalised guidance for businesses on implementing effective anti-bribery compliance programmes.

The guidance was published for consultation in April, following the passage of legislation in February to introduce a new corporate offence of failure to prevent foreign bribery under the Criminal Code Act.

Speaking at the 2024 Australian Dialogue on Bribery and Corruption last week, Attorney-General Mark Dreyfus discussed the new legislation, saying it will “significantly strengthening Australia’s criminal offences on foreign bribery”.

The reforms, which come into effect on 8 September this year, make corporations directly liable for the foreign bribery activities of their employees, external contractors, agents and subsidiaries, unless the company can demonstrate it had ‘adequate procedures’ in place.

“This will enhance Australia’s response to foreign bribery while fulfilling our obligations under the OECD Anti-Bribery Convention,” Dreyfus said.

He noted that whether a company can demonstrate it had ‘adequate procedures’ in place will ultimately be a matter for a court to determine, but that his office would “shortly publish guidance material” in this regard.

The guidance will outline the steps corporations can take to prevent the bribery of foreign public officials. assisting them to address foreign bribery risk in a “proportionate and effective way,” Dreyfus said.

Anti-Corruption Commission

He also discussed progress by the National Anti-Corruption Commission (NACC), which was established last year as an independent agency to detect, investigate and report on serious or systemic corrupt conduct in the public sector, and also work to provide education about corruption risks and prevention.

Dreyfus said the establishment of the NACC represents “an historic step” for Australia. In the 12 months following its launch, the NACC received over 3,000 referrals and commenced over 25 corruption investigations, while also overseeing or monitoring investigations by other agencies. Six matters are, or have already been, before the courts.

To complement the establishment of the NACC, the government has released a new Commonwealth Fraud and Corruption Control Framework which introduces new requirements for government agencies to take measures to prevent, detect and deal with corruption as well as fraud, Dreyfus said.

Whistleblower reforms

Addressing Australia’s whistleblower reforms, he said the government acknowledges the important role whistleblowers play in casting light on integrity issues.

“We are committed to ensuring that Australia has strong, effective and accessible frameworks to protect whistleblowers,” he said.

Dreyfus added that the government is progressing “comprehensive and staged reforms” to the Public Interest Disclosure Act 2013 (PID Act) to ensure it effectively protects whistleblowers who report alleged wrongdoing and corruption.

The first stage of these reforms was in place when the NACC, helping to improve the public sector whistleblowing framework by strengthening protections for whistleblowers and witnesses. The reforms also focused the framework on integrity-related wrongdoing, made it easier to administer, and enhanced oversight of the framework.

In late 2023, the government conducted a public consultation on a second, broader stage of reforms to address the underlying complexity of the PID Act and consider the need for additional support for public sector whistleblowers.

Submissions received as part of the consultation process, published here, are now being considered, Dreyfus said.

Bribery Prevention Network

The Attorney-General also discussed the introduction of the “Bribery Prevention Network”, a public-private partnership that brings together business, civil society and government with the shared goal of supporting Australian business to prevent, detect and address bribery and corruption and promote a culture of compliance.

The Network, which counts the AGD and Australian Federal Police (AFP) as members, provides a free online portal resources curated by anti-bribery experts to support Australian businesses in managing bribery and corruption risks.

Dreyfus said the Network was established in response to Australia’s Phase 4 evaluation under the OECD Anti-Bribery Convention, which identified that the country needed to do more to raise awareness of the foreign bribery risk among SMEs.

“The Bribery Prevention Network draws on the resources and expertise of larger companies to assist small and medium sized enterprises in building and maintaining anti‑bribery compliance programmes,” Dreyfus said.

He noted that its broad the Network was co-designed and continues to be co-led by both the private sector and government, through a Steering Committee which comprises representatives from both sectors as well as civil society.

“This collaborative approach ensures meaningful engagement with both the private sector and civil society in developing practical resources for Australian businesses,” Dreyfus said.

AML/CFT reforms

During his remarks, Dreyfus also discussed ongoing efforts to reform Australia’s AML/CFT regime, specifically by bringing so-called ‘Tranche 2 entities’ such as lawyers, accountants, and real estate professionals into scope.

“These reforms will close a significant regulatory gap in Australia,” he said. “We are one of the few countries in the world that do not regulate high risk services provided by these [Tranche 2] entities.”

Dreyfus added that the reforms will build Australia’s resilience against criminal exploitation and protect businesses that are at the front line of financial crime prevention.

He said the government’s commitment to the reforms was demonstrated by its AUD 166.4 million allocation in this year’s budget for implementation, which will include delivering “comprehensive education and guidance to support businesses”.

Under Australia’s “Third National Action Plan”, published in December 2023 under its Open Government Partnership, a key objective will also be to improve transparency and mitigate corruption risk by progressing the establishment of a Beneficial Ownership Register, Dreyfus said.