Answer ... No.
Whether a company has an anti-corruption compliance programme is relevant, in a negative sense, to the question of determining corporate criminal liability. For example, the following factors may be taken as evidence of a company’s intention or knowingly or reckless conduct in permitting contravening conduct to occur or as an express or implied authorisation or permission to commit conduct (constituting an offence) due to a failure to create or maintain a corporate culture that requires compliance with the law:
- The company has inadequate corporate management, control or supervision of its employees or fails to provide adequate systems for conveying relevant information within a company; or
- The company fails to create and maintain a corporate culture that requires compliance with the law.
Answer ... There are limited compliance best practices for a company published in Australia. A helpful one is published by the Australian Trade Commission, entitled “Anti-Bribery & Corruption: A guide for Australians doping business offshore”.
A range of international guidelines for compliance best practices are available for a company to adopt. These include:
- the Australian Standards Compliance Programmes AS3806-2006;
- the ISO37001 Anti-Bribery Management Systems Standard (2016);
- the UK Ministry of Justice Bribery Act 2010 Guidance;
- the Organisation for Economic Co-operation and Development (OECD) Good Practice Guidance on Internal Controls, Ethics and Compliance (2010); and
- the OECD Corporate Governance; Risk Management and Corporate Governance (2014).
Answer ... A number of specific offence provisions can arise when a company’s books and records are inaccurate, false or misleading, including:
- the false or reckless dealing with accounting document offences;
- the statutory offences of false accounting; and
- limited civil penalties and other criminal offences in the Corporations Act.
There are no positive Australian offences which reflect the US Foreign Corrupt Practices Act requirements for proper internal controls that a company must have in place, other than the provisions referred to above.
Answer ... Subject to continuous disclosure obligations on a listed company, there are no obligations in Australia to report financial irregularities or actual or potential anti-corruption law violations.
There are no obligations, save for in New South Wales, requiring a person (company or individual) to report or disclose the commission or potential commission of an offence. In New South Wales, if a person knows or believes that a serious indictable offence has been committed by another person, and has information that might assist in the apprehension of an offender or the prosecution or conviction of that person, but fails without reasonable excuse to report that information to a member of the New South Wales Police Force, that person is guilty of an offence for which terms of imprisonment of between two and five years may apply.
Answer ... In itself, failure to implement an adequate anti-corruption programme does not constitute a regulatory or criminal violation in Australia.
For the reasons set out above, the absence of an adequate anti-corruption programme is likely to significantly contribute to an investigator and prosecutor forming the view that, if the underlying conduct constitutes the offence of foreign bribery, corporate criminal liability should be attributed to a company for its failure to address and implement either a corporate culture of compliance with the law or otherwise a system of internal policies and procedures that require compliance with the law.