Views from the coal-face
In August 2015, KordaMentha made a submission to the Senate References Committee inquiry 1 into foreign bribery. Our views in that submission were based on the collective knowledge and experience of our Forensic investigations and risk practitioners.
In November 2015, we held a series of roundtable lunch events in Melbourne, Sydney, Brisbane and Perth. A total of 29 people attended. Their roles included In-house General/Legal Counsel, Risk and Compliance, Integrity Departments of State Government, Management, External Counsel, and Financial Crime Prevention and Detection.
Industry sectors represented at the events included:
- Financial Services
2 The issues
The issues discussed at the lunches were based on the key recommendations in our submission to the Committee:
- Implementation of a books and records provision
- Introduction of an offence of failure to prevent bribery
- Introduction of an offence of failure to report bribery
- Whether to remove or maintain the defence of facilitation payments
- Introduction of an offence of corporate bribery
- Whistleblowing incentives and protection
- Resolution options
- Enforcement – structure and responsibility.
The discussion relating to these issues was lively and the views of respondents were captured using live polling.
3 The results
- Does Australia's anti-bribery legislation require more 'clarity'?
Whilst a majority of respondents (55%) agreed that more clarity was needed, about 45% either believed it was not necessary or were unsure.
For those that didn't think it necessary, the rationale was that Australia's legislation had been in place since 1999, yet there had been very little enforcement of it.
- What is your view of Australia's enforcement efforts in respect of foreign bribery?
An overwhelming majority of respondents believed that Australia's enforcements efforts were poor (71%) or fair (25%).
A significant factor in forming these views was the fact that only two corporate convictions had been achieved in 17 years since the foreign bribery legislation was enacted.
Interesting comments included that the lack of enforcement action was a direct result of the lack of political will to deal with the issue.
- For some time, there has been debate about whether the defence of 'facilitation payments'2 should remain. What is your view?
A significant majority (78%) agreed that the facilitation payments defence should be removed. A significant reason was that doing so would remove uncertainty about conduct that may lead to exposure to breaching foreign bribery law.
Arguments for retaining the defence included that not having it would make doing business in certain countries or regions impossible given the cultures of gift-giving and the need for facilitation payments to get anything done.
- Australia's foreign bribery legislation does not contain a books and records provision like the FCPA3. Would such a provision assist enforcement efforts?
An overwhelming majority of respondents (94%) believed that a books and records provision was necessary, not only to assist law enforcement, but also to create a greater incentive for organisations to have appropriate prevention measures and controls in place.
It was agreed that bribery in general, particularly foreign bribery, is difficult to investigate and prosecute. So, having a complementary offence requiring the true nature of transactions to be recorded, as well as related provisions about internal controls, would make enforcement easier and create greater motivation for companies to establish and maintain effective compliance frameworks.
As a result of the recent Senate Committee report the Criminal Code has been amended by adding a new Division 490 to cover false or reckless dealing with an accounting document. The amendments are not limited to foreign or offshore bribery or to conduct involving public officials. They apply from 29 February 2016 and vindicate the views of most attendees at our events and the broader business community.
- Should Australia's foreign bribery legislation include an offence of the failure of a commercial organisation to prevent bribery similar to that contained within the UK Bribery Act?
Given the low levels of enforcement activity in Australia, there has been little incentive for organisations to spend time and money on implementing effective compliance programs in respect of foreign bribery.
The vast majority of respondents (91%) believed that, in order to create this motivation, an offence similar to that contained within the UK Bribery Act with its defence of adequate procedures should be implemented.
- The UK's offence of the failure of a commercial organisation to prevent bribery has a defence of 'adequate procedures'. Guidance on adequate procedures was issued by the UK Department of Justice to increase the understanding of what adequate procedures means. Should Australia issue similar guidance to assist our corporations?
Whilst there is guidance available for legislation from other jurisdictions such as the US FCPA in the FCPA Resources Guide and in the UK Bribery Act Guidance on adequate procedures, the vast majority of respondents (81%) thought that more detailed guidance specific to the Australian position would be useful.
Those that disagreed thought that existing guidance, some of which is mentioned above, was sufficient.
- Should Australia's legislation include an offence of failing to report foreign bribery?
The question of mandatory reporting was a vexed one.
A significant minority (23%) thought that an offence of this nature would be just too difficult for organisations to comply with and would create even more onerous compliance obligations. However, of those in favour (77%), almost two-thirds believed that protocols and guidance would be needed to guide organisations about when foreign bribery should be reported, e.g. after preliminary investigations had established to a reasonable degree of certainty that bribery had occurred.
- Should whistleblower protection legislation be enhanced to better protect private-sector whistleblowers?
It was unanimously agreed that whistleblowing was a key method of detecting serious misconduct such as fraud and corruption, but also that the consequences for whistleblowers were often significant.
Many examples of the harsh treatment of whistleblowers led to a large majority (94%) forming the view that greater protection for private sector whistleblowers was required.
Another factor in favour was the difficulty of investigating bribery issues and the need to create an environment in which individuals would feel more comfortable making reports.
- Should financial incentives be introduced for whistleblowers who report serious misconduct such as fraud and bribery?
A significant number of respondents voted 'no' (42%) mainly on the basis that financial incentives may lead to a deluge of unwanted and unhelpful reporting. However, the majority of respondents who voted for financial incentives (58%) did so on the basis that strict conditions would have to be met before payments could be made. These included that any information provided would have to be original and significantly contribute to the success of any investigation and to resolution of the matter investigated.
Another reason for the need to make payments was that whistleblowers are often disadvantaged financially through loss of career advancement or employment and may be subject to bullying.
- Aside from criminal punishment, should Australia's legislation provide for a wider range of resolution options, such as but not limited to:
- Civil remedies and forfeiture, negotiated settlements together with deferred and non- prosecution agreements, disgorgement of profits etc.
- Obligation to establish or enhance compliance programs and the imposition of company monitors and self-reporting regimes.
- Administrative proceedings.
- Debarment from government contracting.
A large majority of respondents (88%) believed that a wider range of resolution options was necessary when dealing with foreign bribery. Availing regulators with deferred and non- prosecution arrangements similar to those used in the USA under the FCPA for example, was seen as a key means by which regulators could reach a suitable conclusion to an investigation. The benefits identified included reductions in investigation time-frames by agreeing suitable pecuniary penalties and other measures such as effective compliance programs that would reduce future risk for an organisation that was subject to an agreement.
- What measures would help to make the enforcement of Australia's foreign bribery legislation more effective?
As mentioned above, it was widely agreed that Australia's foreign bribery efforts were poor and need to improve. A range of possible improvements was put forward. A significant number of respondents (43%) believed that all of the options provided were needed to bring about the required improvement.
Interestingly, almost a third of respondents thought that just the creation of a central, standalone Commonwealth anti-corruption enforcement agency would increase effectiveness. The creation of such an agency would provide for greater focus and strategic direction.
- Do you think boards of directors are generally knowledgeable enough about foreign bribery to adequately deal with it?
The response to this question was not altogether surprising. A clear majority (57%) believed that the lack of board knowledge about foreign bribery was due to the low levels of enforcement.
It was agreed that boards need greater education about the significance of foreign bribery risk so that they can set agendas for responsible business practices.
- My company has appropriate training, education, systems and procedures in place to prevent or detect bribery and corruption if it occurs?
A significant number of respondents (46%) believed that the systems in their organisations were very effective.
A significant number of respondents (41%), however, stated that systems in place in their organisations may be ineffective. This group of respondents brought home the point that to achieve a culture of compliance, ongoing training and communication are required. In addition, it was agreed that there is no 'one-size-fits-all' compliance program: each needs to be tailored to an individual business and its risk profile.
Another significant factor discussed was the ever-changing nature of the business environment. All compliance measures should be monitored on an ongoing basis and modified when necessary.
Based upon the feedback received during these events, it was generally agreed that:
- Australia's foreign bribery legislation should be modified to meet international standards. Key legislative changes that should be seriously considered include:
- Introduction of a books and records provision, similar to that of the FCPA. As mentioned above at Part 4 of Section 3, the new false/reckless dealing offences are now law; and
- Creation of an offence of failure by a commercial organisation to prevent bribery, similar to that of UK Bribery Act;
- Australia's foreign bribery legislation has been in place since 1999, but the enforcement of it has been insignificant when compared to other countries, in particular the USA;
- Enforcement agencies lack coordination and the resources (human and financial) to deal effectively with foreign bribery;
- Greater protection for private sector whistleblowers should be implemented and serious consideration should be given to a whistleblowing reward scheme;
- Boards of directors should be more knowledgeable about foreign bribery risk in order to be able to deal with it more effectively; and
- Training and communication within corporates is fundamental to producing a culture of compliance and speaking up about foreign bribery.
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2 The defence of 'facilitation payments' can be found at Section 70.4 of the Commonwealth Criminal Code Act 1995. It provides a defence to the bribing of foreign public officials where, (i) the sole or dominant purpose of the payment is to expedite or secure the performance of a routine government action of a minor nature, (ii) the payment does not relate to a decision to award new business or continue existing business and (iii) the value of the benefit is of a minor nature and is accounted for in a record containing detailed information stipulated in the Criminal Code.
3 The Accounting provisions of the Foreign Corrupt Practices Act ('FCPA') are found at Section 13(b)(2)(A) of the Securities Exchange Act (15 U.S.C. § 78m(b)(2)(A)), commonly referred to as 'the books and records' provision; and Section 13(b)(2)(B) of the Securities Exchange Act (15 U.S.C. § 78m(b)(2)(B)), the 'internal control' provisions. The books and records provisions require issuers to 'make and keep books, records, and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the issuer'. The internal control provisions require issuers to devise and maintain a system of internal accounting controls sufficient to provide reasonable assurances that transactions are approved appropriately and assets are appropriately accounted for. (See FCPA Resources Guide, Chapter 3).
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