The OECD Anti-Bribery Convention establishes legally binding standards to criminalise bribery of foreign public officials in international business transactions.
The Phase 4 Report (fourth phase of monitoring, launched in 2016) on Australia by the OECD Working Group on Bribery evaluates and makes recommendations on Australia’s implementation of the Anti-Bribery Convention.
What improvements has Australia made in detecting and investigating foreign bribery cases?
Australia has taken substantial steps to improve its framework for detecting and investigating foreign bribery cases. These measures include:
- Australian Federal Police (AFP) actions:
- Creation of the Fraud and Anti-Corruption Centre (FACC), a team comprised of specialists from AFP and other relevant agencies to investigate foreign bribery referrals
- Expanded the role of AFP’s Foreign Bribery Panel of Experts
- Established two dedicated foreign bribery investigative teams, and an additional fraud and anti-corruption team after receiving additional funding in April 2016
- Commonwealth Director of Public Prosecutions (CDPP) actions:
- Increased foreign bribery expertise of CDPP and created a centralised system for referral of foreign bribery matters
- CDPP involved in development of Bill to amend Australia’s foreign bribery offence, including the introduction of Deferred Prosecution Agreements and a new corporate offence of failing to prevent foreign bribery
What good practices were observed of Australia?
In addition to the institutional changes described above, the OECD Working Group identified several good practices and positive achievements by Australia, which have proven effective in combating bribery of foreign public officials and enhancing enforcement:
- Strengthening of Whistleblower protections
- a dedicated Office of the Whistleblower has been established for corporate whistleblowers
- a Parliamentary Inquiry into whistleblower protections in the corporate, public and not-for profit sectors is ongoing
- Amendment of foreign bribery offence to address potential weaknesses, and proactively identifying possible barriers to successful investigation and prosecution of the foreign bribery offence
- Awareness-raising initiatives on the use of facilitation payments, as well as establishing false accounting offences in the Criminal Code.
- Establishment of Fintel Alliance – a public-private partnership to enhance the fight against money laundering, terrorist financing and organised crime by focusing on developing ‘smarter regulation’
- International operations – engagement of AFP liaison officers around the world in foreign bribery investigations.
What recommendations were made for Australia?
Recommendations were made by the OECD Working Group to help Australia strengthen its foreign bribery enforcement. Some of the key recommendations included:
- Taking appropriate steps to address the risk that the proceeds of foreign bribery could be laundered through the Australian real-estate sector
- Enhancing whistleblower protections in the private sector
- Continuing to resource AFP and CDPP at a level that ensures Australia can effectively enforce its foreign bribery offence
- Proactively pursuing criminal charges against companies for foreign bribery and related offences, such as false accounting, money laundering, and tax evasion
- Finding additional ways to encourage companies (particularly SMEs) to develop and adopt adequate internal controls to prevent and detect foreign bribery
The OECD Working Group assessed that while Australia has made significant improvements in combating bribery of foreign public officials, there are additional steps that could be taken to further strengthen foreign bribery enforcement.
Nyman Gibson Miralis provides expert advice and representation in corruption and bribery matters that involve multiple jurisdictional investigations.
Contact us if you require assistance.