Foreign bribery impedes economic development, corrodes good governance and undermines the rule of law. Appropriately addressing foreign bribery is essential to
cultivating integrity in all areas of government, business and the community.
Australia’s historically poor record in investigating and prosecuting foreign bribery matters has affected its international reputation. International bodies, such as the Organisation for Economic Co-operation and Development (OECD), as well as Australian commentators, have consistently criticised Australia's foreign bribery legislation as being too narrow in scope and inadequately enforced.
This report underlines the critical importance of ensuring Australia has an effective system to combat foreign bribery where individuals and companies are held to account for their actions. It examines Australia's international foreign bribery obligations and the way in which they have been implemented through domestic law. In general, Australia's implementation, though improving over time, remains incomplete.
While the committee endorses the interagency approach which has been adopted in more recent times, and acknowledges the work and role of the Fraud and
Anti-Corruption Centre in improving collaboration, specialised interagency training and early engagement across relevant agencies in foreign bribery matters—more needs to be done.
Evidence presented to the committee established that foreign bribery cases are complex, lengthy and resource intensive. In addition to legislative challenges and poor corporate culture, other factors that potentially contribute to the lack of enforcement of foreign bribery cases in Australia include: a deficiency of sufficient expertise, delays, a lack of domestic and international cooperation and limited resources. The committee is of the view that options should be explored to develop a contingency mechanism that explicitly provides for additional one-off funding to appropriate agencies for large and complex investigations of foreign bribery offences to ensure any allegations are thoroughly investigated, and where appropriate, fully prosecuted.
The committee's report recognises the government's earlier consultations on proposed amendments to the foreign bribery offence and the whistleblower protection regime for the corporate and financial sectors, including the subsequent bills which are currently before the Parliament. While supportive of the introduction of a new corporate offence of failing to prevent foreign bribery, the committee is concerned that the details of the 'adequate procedures' defence to this offence will be provided for in ministerial guidance that is not yet available. In this regard, the committee considers it essential that the minister's guidance be principles-based, include the existence of internal corporate whistleblowing systems, and be subject to thorough public consultation.
Under the current legal framework in Australia, there are limited tangible legal incentives for companies to proactively report any potential instances of foreign
bribery identified internally, and a lack of certainty as to whether any meaningful benefit will flow from cooperation during a criminal investigation.