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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:

  • ‘Fostering a control environment to prevent foreign bribery’
  • ‘Responsibilities of top-level management’
  • ‘Risk assessment’
  • ‘Communication and training’
  • ‘Reporting foreign bribery’
  • ‘Monitoring and review’

Although much of the final guidance is unchanged from the preceding draft, differences include:

  • Clarifying that bribery prevention-related clauses within contracts with Associates should be proportionate and based on the risk of the relationship between the company and contractor.
  • Making minor changes to the case studies, providing further examples of how the principles might be implemented in practice, and giving additional examples of “red flags”.
  • Clarifying that the sub-principle of ‘effectiveness’ is intended to focus on whether an entity’s ABC program is operating with “reasonable efficacy”.
  • Providing several new recommendations, including that upon entering new jurisdictions corporates should seek relevant information from local anti-corruption practitioners and civil society organisations.
  • Adding state-owned enterprises to the list of counterparties that may require more extensive due diligence.
  • Providing further guidance regarding reporting mechanisms, including clarifying that a whistleblower policy implemented in compliance with the Corporations Act is a sufficient confidential reporting mechanism.
  • Removing the express ‘strong discouragement’ of Australian corporates making facilitation payments but recommending a clear policy relating to those payments.
  • Moving and slightly expanding the guidance on self-reporting into a new Appendix B and referring entities to the AFP’s website for further related guidance.

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.

Key contacts

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Christine Wong

Partner, Sydney

Christine Wong
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Tania Gray

Partner, Sydney

Tania Gray
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Leon Chung

Partner, Sydney

Leon Chung
Merryn Quayle photo

Merryn Quayle

Partner, Melbourne

Merryn Quayle
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Anna Sutherland

Executive Partner, Practices, Sydney

Anna Sutherland
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Daniel Hyde

Senior Associate, Sydney

Daniel Hyde
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Elizabeth Macknay

Managing Partner, Perth Office, Perth

Elizabeth Macknay
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Jacqueline Wootton

Partner, Brisbane

Jacqueline Wootton

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Sydney Australia Perth Brisbane Melbourne Dispute Resolution Anti-bribery and Corruption Christine Wong Tania Gray Leon Chung Merryn Quayle Anna Sutherland Daniel Hyde Elizabeth Macknay Jacqueline Wootton