Foreign bribery—2017 Submission to AGD

The ECA supports the policy objective of eliminating the incidence of bribery, and welcomes the Australian Government’s move to review the foreign bribery offence.

The ECA notes that foreign bribery can present disproportionately large challenges to SMEs. The consultation paper states that it can be difficult for the Australian Government to “obtain evidence about foreign laws and the duties of the official in the country where bribery allegedly took place”. Similarly, it is difficult for SMEs to find out what payments are legitimately due. SMEs can also be seen as soft targets by foreign officials seeking bribes, as the greater resources, market position and/or connections of larger corporations act as deterrents. Further, SMEs have fewer resources with which to monitor the actions of overseas staff and agents.

Overall, the ECA supports the intent of most of the amendments but urges caution in their drafting. The government should take care not to significantly shift the balance of the legislation to favour prosecutors over companies—and it should ensure it is not perceived to be doing so. The consequences of doing so will be to impose significant costs on companies that are not involved in foreign bribery.

The ECA does not support the absolute liability provision of s70.5A, which prescribes that a body corporate would be liable for bribery of its employers, contractors and agents (except where it can be established that the company had implemented a proper system of internal controls and compliance in place to prevent the bribery from occurring).