Australia: Changes Likely For The Australian Foreign Bribery Regime

Last Updated: 14 July 2017
Article by Harris Gomez

For some time now, the Australian government has been reforming a number of aspects of the regulatory framework against improper corporate conduct. These reforms include the consultations on deferred prosecution agreements, possible changes to whistle-blower laws, and the prohibition of false accounting. Now, the Commonwealth Government's attention is turning to the foreign bribery regime, with significant changes likely to be on the way and major impacts for directors and corporations. The proposed reforms present a greatly increased risk for liability for both corporations and directors. It is important that these parties understand the changes and how they can ensure compliance in order to combat the risks. This post will discuss some of the key proposals.

Definition of a 'public official'

Under the changes, the definition of a 'public official' would be expanded to also include those persons running for office. The rationale for this is that often candidates for office are often targets of bribery by corporations, with the aim to obtain a benefit upon their election. By expanding the definition, any potential loophole or grey-area in the law will be removed.

Improper influence

The current legislation places a focus on demonstrating that a benefit was 'not legitimately due'. This can become confusing and opens up for bribes to be disguised as legitimate business transactions. Under the reforms, it would be prohibited to 'improperly influence' a foreign public official. The test for what this would constitute can be described as common sense—for example, an indicator of bribery would be a transaction where there is a significant disparity between the value of the benefit and the value of the goods or services provided, or where a benefit was provided without a legal obligation to do so. Further, for corporations there is an emphasis on implementing due diligence frameworks and systems to ensure prevention.

Creation of new offences

In a move to make it easier to establish criminal liability for corporations in instances of foreign bribery, the reforms propose to create two new corporate offences of recklessness and failing to prevent foreign bribery. The offence of recklessness would mean that intention would not be a requirement for a person to be guilty of an offence. Instead, it would merely be required that in their conduct they were reckless as to improperly influencing a foreign public official.

The offence of failing to prevent bribery means that corporations will be liable if they fail to prevent foreign bribery undertaken by their employers, agents and contractors. This extends to overseas operations. The burden will stand on the corporation to show that they had sufficient bribery prevention measures in place.

Foreign Companies in Latin America 

Foreign companies operating in Latin America are faced with a difficult task because often their operations in the Region are small in comparison to their home country. With limited staff and limited knowledge of the different legal jurisdictions, gaps in policy and procedures tend to form and this is where the risk increases substantially for companies.

Harris Gomez Group specializes in working with foreign companies in Latin America and since the cost of compliance, particularly for small to medium companies can be a burden, we work with our clients to create cost effective solutions that focus on three areas:

Corporate Policies and  Procedures

Companies need to have clearly articulated corporate standards.  Simply copying and pasting the companies internal policies regarding bribery is not enough. They need to be adapted to the jurisdiction and provided in Spanish. They also need policies, an ethics code or business principles that give employees and the company's business partners clear direction about:

  • Basic rules, standards and behaviors expected regardless of geography or circumstance.
  • The company's fundamental values and principles.
  • The company's position on bribery, corruption and facilitation payments.
  • The company's rules on competition and antitrust and how they affect commercial operations and transactions.
  • Policies and procedures for business entertainment and gifts.
  • Policies and procedures for political and other donations or grants.
  • Policies and procedures for conflicts of interest.

Monitoring, Controls, Reporting and Auditing 

Monitoring helps the company to understand how well controlled its compliance risks are and to make informed judgments about where it should spend its resources.

  • Review existing controls – against the backdrop of current regulations and the clients' core businesses – to suggest elements to add or improve and advise on issues.
  • Provide examples of whistleblowing and hotline programs.
  • Reviewing their monitoring and reporting processes.

Investigations, Disciplinary Actions and Sanctions

The control and reporting framework serves to identify compliance risks and potential problems. Once these issues arise, the company must respond by investigating, finding the facts, analyzing the legal exposure and resolving the issues.

  •     An investigation or disciplinary action should be conducted in compliance with relevant laws and regulations. Failure to do so can make the compliance risk worse or raise entirely new problems.
  •     Assitance with understanding the processes and procedures associated with a governmental investigation. In addition, developing and implementing a strategy to work most effectively with regulators when there is a possibility of an investigation.
  •     Consideration of local labor, privacy, data protection and other applicable law is very important in the investigation and disciplinary action processes.


The most important takeaway from the proposed changes is that a company will be automatically liable for foreign bribery committed by its employees, agents or contractors. This liability includes companies operating overseas. In terms of corporate governance, this means it basically becomes compulsory for corporations to have detailed compliance and due diligence procedures in place, otherwise they will lose the ability to mount a defence. There are severe penalties in place for the crime of bribery of a foreign official, with fines of up to $1.8 million and imprisonment for up to 10 years for individuals, and for corporations fines of up to $18 million or a fine with reference to the benefit derived from the improper conduct. Under the reforms, these penalties would stay the same but also become applicable to the new corporate offences of failing to prevent bribery and recklessness.

In practical terms, it is critical that companies begin to look over these procedures to make sure they would meet the new tests, and if they don't or companies are unsure whether they do, expert help should be sought out immediately.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Harris Gomez
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


From time to time Mondaq may send you emails promoting Mondaq services including new services. You may opt out of receiving such emails by clicking below.

*** If you do not wish to receive any future announcements of services offered by Mondaq you may opt out by clicking here .


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.