Australia: Whistleblowing And Foreign Bribery Bills Introduced Into Senate

Last Updated: 13 December 2017
Article by Georgie Farrant and Naomita Royan

Whistleblowing and Foreign Bribery Bills introduced into Senate confirm Australian Government's intention to increase corporate compliance requirements. In light of this event, companies should take the appropriate measures.

The Australian Government has introduced two new Bills into the Senate on the last sitting week of 2017 which, if passed, will increase companies' corporate compliance requirements. Although we will not know the final form of this legislation until next year, companies should anticipate there will be a need to update policies, review their procedures and run additional training for their staff and agents and plan accordingly.

A key aspect of the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017 (Corporate Crime Bill) is the introduction of an offence of corporate criminal liability in relation to foreign bribery unless a company can establish that it had "adequate procedures" in place to prevent such misconduct. Although there is no Australian guidance available yet in relation to what will constitute "adequate procedures," there have been some developments overseas which will assist companies to begin devising their procedures.

In relation to the Treasury Laws Amendment (Enhancing Whistleblower Protections) Bill 2017 (the Whistleblowing Bill) legal and compliance teams should be communicating with their HR teams to consider the practical implications of the new regime on running internal investigations, particularly where whistleblowers would, under the proposed legislation, be permitted to make reports anonymously and still be entitled to the protections set out in the proposed legislation.

Corporate Crime Bill

The Corporate Crime Bill:

  • expands and clarifies the scope of Australia's foreign bribery offences (including relating to the scope of what will constitute bribery, the intention behind illegitimate payments or offers of payments, and what matters a court should and should not take into account when determining if an offence is made out);
  • introduces the offence of corporate criminal liability in relation to foreign bribery unless the company can establish that it had "adequate procedures" in place; and
  • introduces a proposed Deferred Prosecution Agreement Scheme (DPA) which would apply not only to foreign bribery but also bribery of Commonwealth public officials and other identified Commonwealth crimes.

These proposed changes were discussed in our April 2017 alert, although one significant change is that the Corporate Crime Bill no longer seeks to introduce a separate foreign bribery offence based on reckless behaviour.

In relation to the "adequate procedures offence" the Explanatory Memorandum states:

"What constitutes 'adequate procedures' would be determined by the courts on a case by case basis. It is envisaged that this concept would be scalable, depending on the relevant circumstance including the size and nature of the body corporate. As noted below, proposed new section 70.5B also provides that the Minister must publish guidance on the steps that body corporates can take to prevent an associate from bribing foreign public officials."

Whilst we wait for guidance from the Minister in relation to this defence, there are a number of overseas sources companies can consult when devising their compliance programs. The most widely-known guidelines are the UK Ministry of Justice's Guidance to help commercial organisations prevent bribery and the US Department of Justice's Evaluation of Corporate Compliance Programs (discussed by our US colleagues here). Additionally, the US Department of Justice's recently-issued FCPA Corporate Enforcement Policy contains details about how it will evaluate companies' compliance programs. While that Policy indicates that the criteria will vary based on the size and resources of each organisation, it also includes examples of some of the elements that may be considered, including the effectiveness of the company's risk assessment and the manner in which the company's compliance program has been tailored based on that risk assessment, the company's culture of compliance, and the resources the company has dedicated to compliance.

Other countries have also introduced similar provisions which may be utilised by the Minister in preparing the Australian guidance. For example, in 2015, Spain introduced amendments to its Criminal Code exempting companies from criminal liability if employees or officers of a company engage in criminal conduct in breach of a compliance program in circumstances where the company has implemented a compliance program that meets Spanish legal requirements, and the supervision of the compliance program was entrusted to an independent body or individual (the "Compliance Body") which has not neglected its duties of supervision, oversight or control. Similar to the UK guidance, the Spanish guidance (discussed by our US and Spanish colleagues here) identifies risk mapping or risk assessment as the initial step in setting up a corporate compliance program.

While waiting for the Australian guidance, conducting a risk assessment has business and compliance benefits for companies that go beyond the desire to protect against potential corporate criminal liability, and would be a practical first step for companies to take at this stage.

Whistleblowing Bill

On 7 December 2017 the Whistleblowing Bill was introduced in the Senate which, if enacted, will consolidate and expand the existing private sector whistleblowing regime in Australia. The Whistleblowing Bill follows the Report by the Parliamentary Joint Committee on Corporations and Financial Services (discussed in our September 2017 alert) but does not include all of the Report's recommendations, such as a monetary reward scheme for whistleblowers. Some of those recommendations are still being considered and may be introduced at a later stage. The Whistleblowing Bill strengthens protections for private sector whistleblowers by creating corresponding requirements for companies. In particular:

  • by 1 January 2019, all public companies will be required to have an internal whistleblower policy. "Large proprietary companies" (as defined in the Corporations Act 2001) and proprietary companies that are trustees of registrable superannuation entities will have a longer period to comply with this requirement;
  • from 1 July 2018, all eligible recipients of qualifying disclosures from eligible whistleblowers will, where such confidentiality is sought and unless subject to exceptions outlined in the Bill, be required to protect from disclosure the identity of the discloser and information that is likely to lead to the identification of the discloser; and
  • from 1 July 2018, all regulated entities receiving qualifying disclosures from eligible whistleblowers will be required to protect eligible whistleblowers from retaliation. Unlike the existing whistleblower protections under the Corporations Act 2001, there is no requirement for whistleblowers to identify themselves in order to receive those protections.

Our experience working with clients in jurisdictions that have implemented similar regimes is that such changes have the capacity to assist companies to investigate and internally remediate issues before employees decide to take their concerns to a regulator or the media.

However, the challenge for companies will be to ensure that their policies and procedures are not only consistent with the new regime's requirements but also that they work with companies' existing procedures in relation to undertaking investigations and disciplinary measures.

To ensure the company can respond quickly and effectively when potential issues arise, companies need to encourage and make it simple for whistleblowers to disclose their concerns to the company at first instance, and not to regulators so that the company can control any such disclosure. They also need to ensure that their procedures allow whistleblowing complaints to be investigated promptly, particularly as under the proposed Whistleblowing Bill, a whistleblower would be entitled to take their report to the media if, after a "reasonable period" following their internal report, the whistleblower has "reasonable grounds to believe that there is an imminent risk of serious harm or danger to public health or safety, or to the financial system" if the information they disclosed is not acted on immediately.

Next steps

Although companies that already have robust whistleblowing and anti-corruption policies and associated procedures may wish to wait to see the final legislation before making any adaptations to their compliance programme, companies that do not already have an effective regime in place should consider developing and implementing one now. The legislative requirements are unlikely to alter significantly, and even without the legislative requirements, these are measures that can mitigate a company's risk of reputational damage, regulatory enforcement and litigation. When establishing effective and risk-based corporate compliance programs, companies can consider Baker McKenzie's distillation of guidance from several jurisdictions into a framework of 5 Essential Elements of Corporate Compliance: Leadership, Risk Assessment, Standards and Controls, Training, and Oversight. For those companies uncertain of where to start the process, a risk assessment or risk-mapping exercise is usually the most effective first step, and we can offer templates and guidance in relation to that process.

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.

Similar Articles
Relevancy Powered by MondaqAI
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
Similar Articles
Relevancy Powered by MondaqAI
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