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2022-2023
THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA
HOUSE OF REPRESENTATIVES
CRIMES LEGISLATION AMENDMENT (COMBATTING FOREIGN BRIBERY)
BILL 2023
ADDENDUM TO THE EXPLANATORY MEMORANDUM
(Circulated by authority of the
Attorney-General, the Hon Mark Dreyfus KC MP)
CRIMES LEGISLATION AMENDMENT (COMBATTING FOREIGN BRIBERY)
BILL 2023
The purpose of this addendum is to provide additional clarifying material to the Explanatory
Memorandum for the Crimes Legislation Amendment (Combatting Foreign Bribery)
Bill 2023 (the Bill).
This addendum responds to Recommendation 1 of the Senate Legal and Constitutional
Affairs Legislation Committee (the Committee) in its report on the Bill published on 26 July
2023. The Committee recommended that the Government consider amending the Bill or the
Bill's explanatory memorandum with respect to proposed section 70.5Ato clarify that the fact
that foreign bribery has occurred does not, in itself, mean that adequate procedures were not
implemented by the relevant body corporate.
GENERAL OUTLINE
1. On page 3, insert the following new paragraph:
6A. The defence is intended to encourage a body corporate to establish,
implement and maintain adequate procedures designed to prevent foreign
bribery. If a body corporate can demonstrate that it had adequate procedures
to prevent foreign bribery in place, the body corporate would obtain the
benefit of the defence set out at subsection 70.5A(5). The defence is intended
to apply in circumstances where a body corporate can demonstrate that it
had, in place, adequate procedures to prevent the commission of an offence
against section 70.2 by any associate of the body corporate (or, where the
associate was engaging in conduct outside of Australia that, if engaged in in
Australia, would constitute an offence against section 70.2). In such
circumstances, the mere fact that an associate of a body corporate has
engaged in foreign bribery does not, of itself, mean that adequate procedures
designed to prevent the commission of the offence were not implemented by
the respective body corporate.
2. Consideration of whether a body corporate has 'adequate procedures designed to
prevent' foreign bribery should be focused on processes undertaken by a body
corporate to prevent foreign bribery, including whether they align with adequate
procedures guidance, rather than solely on the actions by associates of the body
corporate.
NOTES ON CLAUSES
Schedule 1 - Amendments relating to foreign bribery
Item 8 - After paragraph 112
1. After paragraph 112 of the Explanatory Memorandum, insert the following new
paragraph:
112A. If a body corporate can demonstrate that it had adequate procedures designed
to prevent foreign bribery in place, the body corporate would obtain the
benefit of the defence set out at subsection 70.5A(5), despite foreign bribery
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occurring. In such circumstances, the mere fact that an associate of a body
corporate has engaged in foreign bribery does not, in itself, mean that
adequate procedures designed to prevent the commission of the offence were
not implemented by the relevant body corporate. The adequate procedures
guidance, which will be published by the Minister, will outline steps a body
corporate can take to put in place adequate procedures designed to prevent
foreign bribery. If a body corporate can demonstrate it had such procedures
in place, having regard to the guidance, a court may find that it had adequate
procedures designed to prevent foreign bribery. When considering 'adequate
procedures', a body corporate should therefore focus on whether the policies
and procedures it has in place are effective in preventing foreign bribery.
2. This additional material provides clarity on the intended purpose of the new
subsection 70.5A(5), in that a body corporate would obtain the benefit of the defence
if it can demonstrate it had in place adequate procedures designed to prevent the
commission of the foreign bribery, as outlined in paragraph 99 of the Explanatory
Memorandum.
3. The defence is intended to be read as a whole and, as outlined in paragraph 101 of the
Explanatory Memorandum, what constitutes 'adequate procedures' would be
determined by the courts on a case by case basis.
4. Further to the outline in paragraph 101 of the Explanatory Memorandum, the
defendant can provide whatever evidence is appropriate in the circumstances to
demonstrate to the court that it had in place adequate procedures to prevent the
commission of foreign bribery. Whether procedures to prevent foreign bribery are
adequate in the circumstances must be determined on a case by case basis and may
depend on a range of actors, including the size of the relevant body corporate. As
noted in the Explanatory Memorandum, imposing the legal burden on the body
corporate creates a strong positive incentive for corporations to adopt measures to
prevent foreign bribery.
5. Ensuring that a body corporate focus on whether policies and procedures in place are
effective in influencing actions and behaviour, beyond their mere existence, addresses
observations from the United Kingdom in recent foreign bribery prosecution. For
example, a generic ethics policy may not demonstrate that a body corporate had
adequate procedures designed to prevent foreign bribery. Likewise, where a body
corporate implements adequate procedure following an offence by its associate, it
may not retrospectively obtain the benefit of the defence in subsection 70.5(A)(5). A
body corporate should therefore undertake due diligence in preparing its adequate
procedures to prevent foreign bribery.
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