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On 8 September 2024, the new offence of ‘failing to prevent ‘Associates’ bribing foreign public officials’ comes into effect. This is a strict liability corporate offence (see our website for an overview).
There is an adequate procedures defence available to companies, in relation to which the Commonwealth Attorney General is required to publish guidance. The final Guidance on adequate procedures to prevent the commission of foreign bribery was published last week.
It is imperative that companies review the final guidance to determine whether further changes to their anti-bribery and corruption program are needed.
The final guidance adopts the same approach to that in the UK by synthesising the previous guidance into ‘six principles’, each of which are substantially similar to those in the UK:
Although much of the final guidance is unchanged from the preceding draft, differences include:
Finally, while many companies with exposure to the UK will have implemented policies and procedures required by the similar UK ‘failure to prevent bribery’ offence and associated guidance, there are important differences between the UK and Australian regimes. This includes the wider ambit of the UK offence which covers both public and private bribery and the broader approach taken in Australia to the concept of Associate. Our recent podcast compares the UK and Australian positions, and outlines some of the lessons learned from the UK experience.
Please let us know if you would like any further information on the new Australian offence or if we can assist you with preparing for these significant changes.
The contents of this publication are for reference purposes only and may not be current as at the date of accessing this publication. They do not constitute legal advice and should not be relied upon as such. Specific legal advice about your specific circumstances should always be sought separately before taking any action based on this publication.
© Herbert Smith Freehills 2024
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