Foreign bribery offence under the Criminal Code: what changed in 2024

The pre-2024 offence

The foreign bribery offence is contained within Division 70 of the Criminal Code Act 1995. This division criminalises conduct involving offering, promising or providing a benefit to a foreign public official. The intention behind this conduct must be to influence the official in the exercise of their duties, with the aim of obtaining or retaining business or a business advantage. penalty estimator

The offence applies broadly, encompassing actions taken anywhere in the world by Australian citizens, residents, or bodies corporate incorporated in Australia. This means that even if the bribery occurs overseas, the offence can be prosecuted in Australia.

Penalties for breaching the foreign bribery offence are substantial. Individuals face a maximum penalty of 10 years imprisonment, in addition to significant fines. Corporate penalties are structured in tiers, calculated as the greater of a set penalty-unit amount, three times the benefit obtained, or 10 per cent of the company’s annual turnover. penalty estimator

What the 2024 Act changed

The Crimes Legislation Amendment (Combatting Foreign Bribery) Act 2024 made significant alterations to the foreign bribery offence. The Act broadened the scope of the offence and introduced a revised standard for corporate liability.

A key change is the removal of the previous requirement to demonstrate a specific ‘business advantage’ was sought or conferred. The legislation now clarifies that the benefit obtained as a result of the bribery can be of any kind, including a personal benefit to the individual involved.

Furthermore, the Act extended the offence to encompass situations where an advantage is obtained through recklessness regarding whether the influenced conduct improperly affected the official's duties.

The 'failure to prevent' offence

The 2024 Act introduces a new offence relating to the failure to prevent foreign bribery for bodies corporate. This means that a company can be held liable if an associate, such as an employee, contractor, agent, or subsidiary, commits an act of foreign bribery undertaken for the company’s profit or gain. Liability is not automatic; it depends on whether the company had adequate procedures in place designed to prevent the bribery from occurring.

The introduction of this offence is modelled on the UK Bribery Act 2010. It places a significant onus on bodies corporate to proactively manage bribery risks within their operations and supply chains. Directors should review their governance and compliance frameworks to ensure they meet the requirements of the new legislation and understand their [director duties self-check].

The ‘failure to prevent’ offence is intended to create a strong incentive for companies to implement and maintain robust anti-bribery programs. These programs must be documented and demonstrably effective in preventing associated persons from engaging in foreign bribery.

What 'adequate procedures' look like

Adequate procedures, as a means of avoiding liability for foreign bribery offences, require specific elements. The Attorney-General's Department has provided guidance on what these elements should include. These typically involve top-level commitment to preventing foreign bribery, conducting a risk assessment to identify potential vulnerabilities, implementing procedures that are proportionate to the assessed risks, and undertaking due diligence on third parties with whom the body corporate engages.

Further elements of adequate procedures involve ongoing communication and training for relevant personnel, and establishing systems for monitoring and reviewing the effectiveness of the anti-bribery program. These procedures should be regularly updated to reflect changes in the operating environment and emerging risks.

A documented anti-bribery program, assessed against the guidance issued by the Attorney-General's Department, is now a practical necessity for any Australian body corporate that operates internationally.