The Crimes Legislation Amendment (Combating Foreign Bribery) Act 2024 provides, in particular, for the establishment of a new corpus delicti – failure of an organisation to prevent bribery of foreign public officials.

According to the Australian law, bribery of foreign public officials occurs when a person provides, offers and/or promises a benefit or another advantage to a foreign public official if this benefit or advantage is not legitimate, and the bribe-giver intends to exercise undue influence on the foreign public official in the exercise of his/her duties with the aim to obtain/retain a business or an illegal competitive advantage. The subject of the crime can be both a natural and a legal person.

The amendments made imply that from now on a legal person can be also held liable for a failure to prevent bribery of a foreign public official if a person associated with it commits the crime of bribery of a foreign public official or is involved in misconduct outside the country that would be considered as bribery of a foreign public official if committed in the territory of the country with the aim to obtain a benefit or another advantage not limited to property by the legal person.

The provisions are applicable to:

• Constitutional corporations, i.e. foreign companies exercising their activities in the territory of Australia, or trade or financial organisations established within Australia’s jurisdiction;
• Companies registered in the territory of Australia;
• Companies that are considered to be registered in the territory of Australia in line with section 119A of the Corporations Act 2001.

An associate of an organisation is identified as:

• A corporation’s officer, employee, agent and third party;
• A corporation’s subsidiary;
• Any persons under a corporation’s control;
• A person who otherwise performs services for or on behalf of a corporation.

Under the Act, if found guilty of the failure to prevent bribery of a foreign public official, the legal person is obliged to pay a fine below the biggest of the following penalties:

• 100,000 penalty units (the volume of a penalty unit may vary depending on the state or territory – editor’s note);
• If the value of the benefit of another advantage can be determined – the amount equivalent to this value;
• If it is impossible to determine the value of the benefit or another advantage – ten per cent of the annual turnover of the legal person during the period of 12 months ending at the end of the month in which the corporation committed the offence.

A legal person, however, can be exempt from liability if it provides evidence that at the moment of commission of the crime it had the appropriate procedures to prevent bribery of foreign public officials in place. The Attorney-General is required by the Act to publish guidance on the steps that a company can take to prevent associates from bribing foreign public officials.

The Act further clarifies a number of provisions concerning the object of foreign bribery:

• It expands the previous list of persons considered as foreign public officials, in particular, individuals standing or nominated as candidates to be foreign public officials;
• It establishes the procedure for determining (un)lawfulness of influence exercised with regard to a foreign public official. To this end, law enforcement may have regard to the following:

1. The recipient or intended recipient of the benefit;
2. The nature of the benefit;
3. The manner of the provision of the benefit;
4. If the benefit was provided in the absence of any legal obligation to do so;
5. If the provision of the benefit is recorded or documented etc.

The amendments enter into force on 8 September 2024.