From Policy to Practice: Developing Robust Anti-Bribery Defence Measures against Australia’s Foreign Bribery Offences

Our team earlier this year published an article on the new offence of failing to prevent foreign bribery and the corporate defence to the offence if a company can show it had ‘adequate procedures’ in place to prevent the commission of foreign bribery by its associates.

The Department of Attorney-General (DAG) has recently published final guidance on what steps corporations can to ensure it has ‘adequate procedures’ in place. The guidance notes that what constitutes “adequate procedures” will be determined on a case-by-case basis.

Effective compliance program

The DAG sets out the following six key principles that companies should be mindful of when developing and implementing effective anti-bribery compliance programs.

1. Fostering a control environment to prevent foreign bribery

The DAG emphasises that the controls a company implements to prevent foreign bribery should be proportionate to the corporation’s operational circumstances, including its foreign bribery risks and the nature of its activities.

It also notes 5 main indicators of what the DAG considers to be an effective anti-bribery compliance program, namely:

1. A robust culture of integrity within the corporation.
2. Demonstrated pro-compliance conduct by top-level management and, where applicable, the board of directors.
3. A strong anti-bribery compliance function or functional equivalent.
4. Effective risk assessment and due diligence procedures.
5. Careful and proper use of third parties. Due diligence processes should be engaged with.

2. Responsibilities of top-level management

A corporation’s top-level management personnel should play a critical role in developing, implementing and promoting its anti-bribery compliance program. Top-level management also has the responsibility for fostering an anti-bribery culture within the corporation.

The DAG provides non-exhaustive examples in the kinds of conduct top-level management could include in developing and implementing an anti-bribery compliance program.

3. Risk assessment

Companies should adopt a risk-based approach to developing an anti-bribery compliance program, which covers 3 key steps:

1. Conduct a bribery risk assessment, identifying risks to the corporation.
2. Rate the risks, including their likelihood and potential impact.
3. Document the process and findings.

4. Communication and training

Companies should conduct communication and training to employees and associates to ensure they understand the corporation’s anti-bribery compliance program, and the practical application of controls to mitigate anti-bribery risks.

The guidance emphasises that the frequency and content of communications and training should be proportionate to the bribery risks faced.

5. Reporting foreign bribery

Companies should, regardless of size, adopt mechanisms that encourage and facilitate the reporting of actual or suspected instances of bribery of bribery solicitation.

The guidance also notes that all Australian corporations must comply with Australia’s whistleblower protections, a topic we have covered in this article.

6. Monitoring and review

The DAG notes that the effectiveness of an anti-bribery compliance program will change over time, requiring continuous monitoring and improvement.

In addition to scheduled reviews, the DAG provides non-exhaustive examples of circumstances which should prompt companies to evaluate and review their program, including:

1. Entering new markets.
2. Changes to the corporation’s activities.
3. A bribery incident.
4. A corruption incident.
5. Changes in the corporation’s governance or regulatory environment.
6. Employee or associate feedback from surveys or training.

If seeking to implement a compliance program, respond to a situation, or discuss the new laws, please contact a member of our expert disputes and investigations practice.

Authors: Jonathon Ellis, Jessica Laverty, Jonathan Tay, and Jeremy Maybloom