Consultation on proposed amendments to the foreign bribery offence in the Criminal Code Act 1995

The AICD fully supports the government’s aim of combatting bribery of foreign public officials. Foreign bribery stifles economic development, fair competition and the rule of law. It erodes confidence in competitive markets, and stifles investment and entrepreneurialism in export markets.

The AICD acknowledges the difficulties faced by the Australian Federal Police and the Office of the Commonwealth Director of Public Prosecutions in investigating and prosecuting foreign bribery offences. These prosecutions are complex and often protracted. We note that there have been very few prosecutions in Australia since the current foreign bribery laws were introduced in 1999. Accordingly, the AICD welcomes the government’s efforts to improve the legislation regarding Australia’s foreign bribery offences.

Given the AICD’s support for the government’s efforts to enhance the effectiveness of Australia’s foreign bribery laws, the submission aims to ensure that any legislative changes are effective, clear, balanced and, to the extent possible, consistent with existing regulation.

In summary, the AICD:

• does not support the creation of a new foreign bribery offence based on the fault element of ‘recklessness’;
• suggests that the proposed ‘failure to prevent’ offence only apply to a subsidiary in a corporate group where factual elements of both control and fault are attributable to the parent company;
• suggests that the evidentiary burden, rather than a legal burden, apply in relation to the ‘exception’ to the ‘failure to prevent’ offence in section 70.5A(5) of the Exposure Draft;
• favours a test of ‘dishonesty’, based on the interpretation of that term in Peters v R,[1] over the proposed test of ‘improperly influence’;
• supports the proposed extension of the definition of ‘foreign public official’ to include candidates for office; and
• opposes the proposed clarification that the accused need not have a ‘specific’ business or advantage in mind when the benefit is offered or provided.

If you would like to discuss any aspect of this submission, please contact Matt McGirr, Policy Adviser, on (02) 8248 2705 or at mmcgirr@aicd.com.au.