On Sunday, 8 September, the Crimes Legislation Amendment (Combating Foreign Bribery) Act 2024 came into effect, which intends to combat foreign bribery and remove barriers to investigations and prosecutions.

Moving forward, corporations that fail to prevent foreign bribery face penalties running into the tens of millions of dollars and will be held directly liable for the foreign bribery activities of their employees, external contractors, agents, and subsidiaries, unless the business can demonstrate that they had adequate procedures in place.

In a statement issued over the weekend, Attorney-General Mark Dreyfus said: “Foreign bribery is corruption and an insidious problem across the world. It harms communities, impedes economic development, and undermines the rule of law.”

Speaking earlier this week on The Corporate Counsel Show, A&O Shearman counsel Jessica Zoller (pictured) reflected that the hurdle to be cleared for a successful prosecution in a foreign bribery matter is now “significantly lower”.

“With lower hurdles to prosecution, there’s now a much more credible threat on the books for companies,” she said.

Australia has had, she detailed, “historically low rates of attempted and successful prosecutions, both of individuals and corporations under existing laws”. The new legislation, she said, “is a significant leap forward” in changing the corporate criminal landscape.

While the new laws do not allow for deferred prosecution agreements – whereby a prosecution with a corporation can be settled in exchange for the corporation complying with several requirements, such as paying a fine and improving its compliance framework – the federal government has flagged that this issue will be revisited in due course.

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Looking ahead, compliance will have to go beyond getting strong policies in place, Zoller said.

“If a company looks around and sees it has a good anti-bribery and corruption policy, a good money laundering policy, a good modern slavery policy, it feels like it’s doing all that it needs to do. What the new legislation makes clear, and what the new guidance makes clear, is that having a good policy in place actually isn’t enough,” she said.

“The only defence to this new offence is for a company to have adequate procedures in place. An adequate procedure is defined to not only be having a good policy in place, rather there’s a whole host of things that will be taken into account in working out whether a company has adequate procedures, including things like setting the right tone from the top, making sure that you do your due diligence.”

“It’s not just about having that strong written policy.”

When asked what the role of the law department will be moving forward, Zoller said that the “real value” that the in-house legal team can provide is ensuring that “if the worst comes to pass, making sure that the company has in place adequate procedures in order to successfully defend against a prosecution, or even have those adequate procedures in place to convince the AFP or the CDPP to not proceed with the prosecution in the first place”.

This would necessarily entail, Zoller continued, demonstrating a sufficient level of engagement by management on pertinent issues.

“So, for an in-house legal team, it might be making sure that the board has adequate training about what the new laws require. It’s about encouraging the board to be making top-down statements both to its employees and to its external vendors. It’s about making sure that the company has current risk assessments in place to identify what are the red flags that our company is facing, and how can we adequately moderate the risk that that poses,” she said.