Australia: Shifting gears on foreign bribery: Proposed measures expose more Australian companies

More conduct will be captured by foreign anti-bribery laws, and there will be new offences and higher penalties too.

Australia is shifting its gears in its approach to tackling the threat of foreign bribery.

On the back of international criticism that our legislation is too soft and there is a lack of successful enforcement, the Australian Government is looking at imposing an automatic liability on companies for foreign bribery offences along with the introduction of the lesser offence of recklessness.

If the measures set out in the April 2017 Consultation Paper are passed in their current form, the potential impact on Australian companies and its officers are far-reaching. If you are an Australian company dealing with foreign officials, whether through your staff or associates, you may be exposed.

The key changes to foreign anti-bribery laws at a glance

If your company does business overseas and persons associated with it deal with foreign officials, then you could be held responsible if they bribe a foreign official to gain some benefit.

A broader definition of "associate"

The proposed measures expand the definition of "associate" to mean "an employee, agent, contractor or subsidiary of the other person, is controlled by the other person or performs services for or on behalf of another person".

The introduction of two new offences

  1. Corporate failure to prevent bribery
  2. This applies to companies whose employees or associates engage in foreign bribery to benefit the company. The liability is automatic, regardless of whether the persons involved are convicted.

    A defence is available if the company can prove it had adequate procedures to prevent and detect foreign bribery.

  1. Lesser offences based on recklessness
  2. The current legislation only applies where it can be proven that the person intended the bribe to influence a foreign official.

    The new offence would to apply to situations where the person may not intend to influence a foreign official but is aware there is a substantial risk that a foreign official may be improperly influenced in the circumstances, but still takes the risk. As this fault element is lower than intention, the associated penalties and jail time are lower but still substantial.

A broader definition of "foreign public official"

The definition will be broadened to include formal and informal candidates standing for office. Australian businesses making or considering foreign political donations or contributions to solicit the favour of foreign officials before their election to office should consider the implications of the new measures.

The inclusion of acts outside a foreign official's official capacity

Bribes which solicit acts outside a foreign official's duties, such as soliciting honorific titles, will now be captured.

The implementation of a broader advantage/benefit test

Replacing the specific business advantage/benefit requirement with a broader advantage/benefit test means that bribes for:

  • a personal advantage;
  • some future advantage or favour; or
  • for the benefit of third parties;

will be caught by the new measures.

A move from the "not legitimately due" test to an "improperly influence" test

The "improperly influence" test will shift the focus to the impact upon the foreign official.

The following factors may be considered when trying to determine if there is improper influence:

  • proportionality of the benefit derived to the consideration conferred;
  • onature of the items involved;
  • to whom the benefits are provided and how;
  • if a legal obligation exists to provide the benefits; and
  • any documentation surrounding each transaction.

The introduction of a deferred prosecution scheme

As an alternative measure to corporate prosecution for serious crimes, the corporation may have the option enter into an agreement to perform certain actions with prosecution suspended pending successful completion. If successfully completed, the crimes subject to the agreement would not be prosecuted.

Higher, tougher penalties

The penalties will depend upon who is involved and whether the crime is intentional, reckless, or involves a corporate failure to prevent foreign bribery.

Maximum penalties proposed are:


If intentional: 10 years' jail and/or 10,000 penalty units (currently $2,100,000)

If reckless: 5 years' jail and/or 5,000 penalty units (currently $1,050,000)


If intentional OR for corporate failure to prevent foreign bribery: the greater of:

  • 100,000 penalty units (currently $21 million),
  • three times the value of the benefit (if it is ascertainable), or
  • 10% of the corporation's annual turnover (if the benefit is not ascertainable)

If reckless: the greater of:

  • 50,000 penalty units (currently $10.5 million),
  • 1.5 times the value of the benefit (if it is ascertainable), or
  • 5% of the corporation's annual turnover (if the benefit is not ascertainable)

Getting ready for tougher foreign anti-bribery laws

Although the measures are only proposals, if they are implemented unchanged the penalties (including jail) for breaches are substantial. With the addition of crimes for recklessness and corporate liability for failing to prevent foreign bribery, the conduct captured is much broader.

When combined with the false accounting crime introduced in March 2016, one instance of foreign bribery can trigger a multitude of breaches, each with their own consequences; the outcomes could be catastrophic to your business.

We encourage you to undertake a detailed review of your business policies, procedures controls and systems you have in place to prevent and detect foreign bribery.

The failure to do so may mean you have no defence available, and cost you more than just reputational damage: there are hefty penalties and possible jail time for individuals if convicted.


Clayton Utz communications are intended to provide commentary and general information. They should not be relied upon as legal advice. Formal legal advice should be sought in particular transactions or on matters of interest arising from this bulletin. Persons listed may not be admitted in all states and territories.

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.

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”

Related Topics
Related Articles
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
Registration (you must scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of

To Use you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

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 or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.


The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq 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 of the Content or performance of Mondaq’s Services.


Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions