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Hot on the heels of the NACC, the Federal Government is now pursuing reforms to Australia’s foreign bribery landscape. The new Combatting Foreign Bribery Bill has re-enlivened some (but not all) previously lapsed reforms to strengthen Australia’s anti-bribery and corruption laws. A “failure to prevent” foreign bribery offence for corporates is back on the cards, but deferred prosecution agreements are no longer on offer. We cut through the déjà vu to tell you what’s different, what’s new and what’s missing.

In March, we asked, “whatever happened to the Combatting Corporate Crime Bill?” At the time, the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 (Cth) had lapsed, but various developments signalled foreign bribery law reform remained under consideration.  The introduction of the Crimes Legislation Amendment (Combatting Foreign Bribery) Bill 2023 on 22 June 2023 confirmed our prediction that the Combatting Corporate Crime Bill was gone but not forgotten.

When introducing the new Bill, Attorney-General Mark Dreyfus announced the Labor Government “is cracking down on foreign bribery by Australian companies by removing barriers to investigations and prosecutions”. Sound familiar? It is consistent with statements from the previous two Governments, who introduced earlier iterations of similar legislation. It is also in-step with approaches to tackling economic crime in the UK.

But there is one notable difference in the new Bill - the absence of the proposed deferred prosecution agreement (DPA) scheme. In the Combatting Corporate Crime Bill, DPAs were included to encourage corporates to self-report serious misconduct in return for greater certainty of outcome when compared to litigation, as well as an opportunity to potentially avoid some of the reputational and financial costs associated with criminal law processes. This means the new Bill keeps the “stick” measures to make it easier to prosecute corporates for foreign bribery, but leaves out the “carrot” to incentivise pro-active cooperation and non-prosecution outcomes.

So, what does this all mean for business?

Key points

  • The new Bill contains the same key amendments to the foreign bribery provisions in the Commonwealth Criminal Code as the Combatting Corporate Crime Bill, including the introduction of a new offence for companies that fail to prevent foreign bribery by “associates”, with a defence if the company can establish that they had in place “adequate procedures” to prevent such conduct.
  • The previously proposed DPA scheme is not included. This Bill introduces a new offence that casts a wide net of potential liability, but corporates will not have the DPA avenue to explore as an alternative to prosecution. DPAs will not, without further reforms, be available for other serious corporate offences such as false accounting, money laundering and sanctions violations.
  • The Attorney-General has flagged that DPAs may be considered in future, but only after the new measures in the current Bill have been given time to work.
  • There is appetite and momentum for passing this Bill. If passed, the amendments will commence six months after the Bill receives Royal Assent, giving businesses time to make any adjustments to their anti-bribery and corruption (ABC) procedures.
  • In preparation, companies and executives should revisit the Attorney-General’s Department Draft guidance on adequate procedures to prevent the commission of foreign bribery to assess whether they have proportionate and effective preventative procedures in place. The Government will also be required to publish updated guidance within six months after Royal Assent.

How does the new Bill compare?

Most of the key measures in the Combatting Foreign Bribery Bill appeared in the Combatting Corporate Crime Bill, but one key aspect of the previously proposed reforms is now off the table.

Amendment in the Combatting Corporate Crime Bill

What does it mean?

Is it in the new Combatting Foreign Bribery Bill?

Broadening the offence of bribing a foreign public official

Key changes to the existing offence provision and definitions in the Criminal Code:

  • expanding the definition of foreign public official to also include a candidate for office;
  • removing the requirement to prove that bribery was done with the intention of influencing a foreign public official in “the exercise of the official’s duties”;
  • replacing the concept of the benefit being “not legitimately due” with an intention to “improperly influence” a foreign public official; and
  • broadening the offence to include bribery for the purposes of obtaining or retaining a personal (not just a business) advantage.

Yes, the same changes have been re-introduced.

While we wait for the Bill to progress, police, prosecutors and the courts are continuing to use the existing offence provision in the Criminal Code. Recently, in R v AB; R v CD; R v EF [2023] NSWCCA 168, the New South Wales Court of Criminal Appeal confirmed that the current s 70.2 applies in relation to bribes made in order to directly or indirectly obtain or retain business, for example payments for the purpose of ensuring a tenderer is not excluded from a tender process.

New offence of failing to prevent foreign bribery and “adequate procedures” defence

A company will be liable in the event that they fail to prevent bribery of a foreign public official by “associates” acting for the company’s profit or gain, subject to an “adequate procedures” defence.

However, a company will not be liable if it can establish that it had in place at the time adequate procedures designed to prevent bribery of foreign public officials by “associates”. The Government will be required to publish guidance on the steps that companies can take to prevent associates from engaging in foreign bribery. In 2019, the Attorney-General’s Department released draft guidance on what “adequate procedures” look like. This draft guidance may be updated in light of the new Bill.

Yes, the same new offence and defence have been re-introduced.

In the new Bill, the offence is specified as an “indictable offence”, reinforcing its seriousness. This means prosecutions will be able to be heard in superior courts and police and prosecutors will be able to seek certain Proceeds of Crime Act orders, including some restraining orders, forfeiture orders and civil penalty orders.

Broad definition of “associate”

Associates of a company will include:

  • officers, employees, agents and contractors;
  • subsidiaries of the company and persons controlled by the company (within the meaning of the Corporations Act); and
  • persons who otherwise perform services for or on behalf of the company (this could include, for example, consultants and suppliers).

Yes, the new definition is the same.

Substantial penalties

If a company is found to have breached the offence of failing to prevent foreign bribery, the Court may apply a penalty of not more than the greatest of the following:

  • 100,000 penalty units ($31,300,000 as at 1 July 2023); or
  • three times the value of the benefit obtained from the offence; or
  • where the value of the benefit cannot be determined, 10% of the company’s annual turnover at the relevant time.

Yes, the same penalties will apply to the new offence.

Deferred prosecution agreements (DPAs)

Introducing a process which would allow a company and the Commonwealth Director of Public Prosecutions (CDPP) to enter into an agreement providing that the CDPP will not prosecute the company where the company agrees to comply with specified conditions. If the company fulfils its obligations under the DPA, it will not be prosecuted for the relevant offences.

DPAs were proposed for a range of Commonwealth offences including bribery, money laundering and sanctions violations and market misconduct offences.

No, the Bill does not include amendments to introduce a DPA process.


This reform had been welcomed by some as an efficient addition to the prosecutor’s tool kit. Pending further reform, this will not be an option for companies charged with Commonwealth offences.

What happened to the DPA scheme?

Both of the previous two Coalition Governments introduced Combatting Corporate Crime Bills that included the foreign bribery amendments and provisions for the introduction of a DPA scheme. In both instances, the Bills were never put to a vote and lapsed when Parliament was prorogued ahead of a Federal election. This did not reflect a lack of support for the Bills – the main amendments largely had bipartisan support and were broadly endorsed by the Australian Law Reform Commission’s report on Corporate Criminal Responsibility.

The failure of the last iteration of the Bill has been attributed to a lack of momentum from both sides of politics, but the inclusion of the DPA scheme was likely another stumbling block. Labor Senators objected to DPAs in the 2019 Bill, including because the scheme effectively created a “two-tiered justice system” where corporates could negotiate an outcome while individuals were still subject to traditional criminal law processes, in the courts. The current Labor Attorney-General made similar comments about DPAs in the second reading speech for the new Bill, suggesting that companies should not be treated differently to “ordinary Australians” who, when they commit crimes, “feel the full force of the law”. Mr Dreyfus did flag that DPAs may still be considered in future, but that it is premature to introduce them in relation to foreign bribery offences now.

This is out of step with other jurisdictions. The new “failure to prevent” offence is consistent with the UK’s approach to economic crime, but the Government’s omission of the DPA regime is a departure from the UK model. The new offence in the Combatting Foreign Bribery Bill was originally modelled on provisions of the Bribery Act 2010 (UK) and the UK has recently proposed a new “failure to prevent” fraud offence. In the UK, however, these offences can be (or, in the case of the new fraud offence, is proposed to be) subject to the UK DPA regime. DPAs are also available in a number of other foreign jurisdictions, including the US, Canada, France and Singapore.  

Will this Bill pass?

The Opposition may seek amendments to the current Bill to re-introduce the DPA scheme, but at this stage it appears both major parties support the main foreign bribery amendments. It seems unlikely that this Bill will languish like its predecessors, especially in the wake of the commencement of the National Anti-Corruption Commission.

The current Government is clearly motivated to tackle corruption issues, evidenced by the establishment of the NACC, recent Public Interest Disclosure reforms and expressions of Australia’s commitment to the OECD Anti-Bribery Convention. As a signatory to the convention, Australia is required to ensure its laws are effective at holding natural and legal persons (i.e. corporations) to account for foreign bribery. All of these developments suggest this Bill will move faster than its predecessors.

What do you need to do now?

Happily, the new Bill indicates that any work undertaken to uplift a company’s anti-bribery and corruption framework in light of the Combatting Corporate Crime Bill was not wasted, and that it should remain a priority if that work has not been completed. If the Bill passes, corporates will have six months from Royal Assent to make any adjustments to reflect the new law. The amendments will only apply in relation to conduct engaged in on or after the law comes into effect.

To prepare, companies should revisit the Attorney-General’s Department’s Draft Guidance to ensure they have effective and proportionate procedures to prevent bribery, and monitor for any updates to that Guidance. As noted by the Department, there is no one size fits all approach, but appropriate measures could include:

  • refreshing your ABC risk assessment, in particular in relation to any “associates”;
  • ensuring effective due diligence procedures are applied to engaging third parties, in mergers and acquisitions and other relevant situations;
  • regular and thorough assessments of whether existing ABC policies and procedures are effective and up-to-date; and
  • providing updated ABC training and encouraging the reporting of concerns through whistleblower channels or other internal reporting lines.


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