At the end of August 2024, the Attorney-General published its final guidance on adequate procedures to prevent the commission of foreign bribery. The guidance follows the passage of the Crimes Legislation Amendment (Combatting Foreign Bribery) Act 2024 earlier this year which introduced the new offence of failing to prevent foreign bribery, under which companies can be held directly criminally 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 to prevent the bribery.

The Australian government has, after many years of deliberation, passed the Crimes Legislation Amendment (Combatting Foreign Bribery) Bill 2023 which introduces a new indictable corporate offence of failing to prevent foreign bribery.
This offence will apply where an associate of a company has committed bribery in relation to a foreign public official for the profit or gain of the company. The company will be liable unless it can establish that it has ‘adequate procedures’ in place to prevent the commission of bribery by its associates.

A recent High Court decision and the re-introduction of proposed legislation to Parliament which will make it easier to prosecute bribery of foreign officials, both emphasize the importance of companies having adequate procedures in place to ensure that their employees and agents are not engaging in conduct which could expose the company to significant fines.

The Guide to Compliance, published by Global Investigations Review (GIR), brings together compliance guidance and criminal enforcement trends relating to financial crimes and misconduct. Baker McKenzie partners have contributed two chapters in GIR’s guide.

The chapter on Asia Pacific Compliance Enforcement covers key areas of enforcement priorities, including anti-bribery and anti-corruption, anti-money laundering and other key criminal offenses affecting multinational corporations, and provides an overview of emerging compliance issues and enforcement trends relevant to cross-border business.

The chapter on Compliance Issues in Corporate Transactions covers key compliance areas in due diligence, how to go about an effective assessment of compliance policies and procedures or issues in third-party dealings, and the process of remediating any compliance issues identified during due diligence.

* An extract from the first edition of GIR’s The Guide to Compliance. The whole publication is available at the GIR website.

The federal election is slated for 21 May 2022 and it is important to be aware of your obligations when it comes to political donations to ensure you are compliant with any disclosure requirements under the Commonwealth Electoral Act 19189 (Cth) (“Electoral Act”).
Not only do offences under the Electoral Act carry fines but non-compliance with political donations laws can lead to significant reputational risk in an area that frequently makes headlines.
This federal election is also the first since reforms in December 2021 tightened the laws relating to political donations in relation to foreign donors.

ASIC has written to public companies, large proprietary companies and trustees of registrable superannuation entities urging them to review their whistleblowing policies to ensure they are compliant with the Corporations Act 2001.

The privilege against self-incrimination has long been a feature of Australia’s common law and recognises the important concept that individuals should not be compelled to incriminate themselves. The privilege has also been protected by legislation, including in sections 128 & 128A of the Evidence Act 1995 (Cth). A recent High Court decision in Deputy Commissioner of Taxation v Zu Neng Shi [2021] HCA 22 considered whether disclosure of privileged information was in the interests of justice.

ASIC has released a new immunity policy setting out the process and conditions for whistleblowers to obtain immunity from certain civil penalty or criminal proceedings (Immunity Policy). The Immunity Policy extends the types of protection available to a whistleblower beyond those which became available under the Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) (Whistleblowing Legislation) which came into force in 2019. As a result there is an increased risk that employees may elect to go direct to ASIC rather than raising an issue internally.

Australia moves a step closer to new corporate criminal offence of failure to prevent bribery of foreign public officials by “associates.” Do you know who your associates are and what they are doing? The Legal and Constitutional Affairs Legislation Committee has published its report recommending that the Crimes Legislation Amendment…

ASIC has issued its final guidance on the content of whistleblowing policies. ASIC’s Regulatory Guide 270 ‘Whistleblower Policies’ sets out what information policies should contain in order for companies to be compliant with their obligations under the new Australian whistleblowing regime. You can read more about the new whistleblowing regime…