08 August 2017

Staying ahead of the curve on anti-bribery and corruption in Australia

This article was written by Monique Carroll and Jessica Bounds.

Australia’s regulatory landscape is constantly changing and companies must stay ahead of the curve. In the anti-bribery and corruption space, a large number of legislative changes have been proposed which, if introduced, will significantly increase the level of vigilance required by companies. 

These proposed changes include: 

  • Changes to the Criminal Code aimed at increasing the range of conduct caught, and the ease with which prosecutions can be successfully brought, via the introduction of a new ‘failure to prevent bribery’ offence. This would make companies liable for bribery committed not only by their employees and/or agents, but by their ‘associates’ where the company receives a direct or indirect benefit. Importantly, ‘associate’ is defined broadly to include off shore subsidiaries, contractors and service providers. 

  • A number of other proposed laws aimed at achieving better investigatory and enforcement outcomes, including enhancements to and expansion of the whistleblower framework and a Deferred Prosecution Scheme which would reward companies for self-reporting. 

  • A reporting requirement similar to the UK’s Modern Slavery Act, which would require Australian companies to publicly disclose what they are doing to eradicate modern slavery in their supply chains. 

So how can your company stay ahead of the curve in this ever changing landscape? 

The primary focus is to avoid any compliance issues arising and then if they do, to be able to evaluate them quickly so that an opportunity to achieve a better regulatory enforcement outcome is not lost. 

Here are four practical tips to stay ahead:

  1. A tailored and reliable compliance programme directed to a company’s associates and suppliers (as the case may be). You need to understand your company’s supply chain and what your ‘associates’ are doing at quite a granular level. Many compliance issues arise as a result of a failure to reliably implement well drafted policies. You need to ensure that your policies are actually being implemented. 

  2. Robust due diligence capabilities and procedures that are industry specific. Make sure that you understand the compliance issues in your specific industry and jurisdictions – don’t assume that the way you do business around the world will be accepted and legal in every jurisdiction. 

  3. Investigation nouse. You need to be able to ascertain key facts quickly to identify whether an offence has occurred so that you can consider whether a Deferred Prosecution Agreement (depending on the jurisdiction) or self-reporting scheme is appropriate prior to a formal investigation being commenced by the authorities. There is a tendency for service providers to get bogged down in a myriad of documents and other evidence which results in internal investigations taking a long time. King & Wood Mallesons is in the process of finalising an internal guide to streamline and fast track these investigations whilst maintaining legal professional privilege. 

  4. A Crisis Management Plan that considers all relevant jurisdictions. Once the regulators have visited your premises and a formal investigation has begun, the scope to improve outcomes by self-reporting will be drastically limited. In some jurisdictions, by this stage guilt may be presumed and the information and employees you need to ascertain basic facts have been detained. A cross-jurisdictional Crisis Management Plan to ascertain the facts to the greatest extent possible, negotiate with regulators, make any public disclosures and address implications in other jurisdictions, will make a valuable impact on mitigating negative outcomes from a regulatory investigation.

Crossing Borders: China's Belt and Road Initiative

Crossing Borders is a periodic review of developments in international arbitration across the world. Download a PDF of the latest edition which focuses on the impact of China's Belt and Road initiative.

Crossing Borders
Share on LinkedIn Share on Facebook Share on Twitter Share on Google+
    You might also be interested in

    On 18 July 2017 Australia signed the United Nations Convention on Transparency in Treaty-based Investor-State Arbitration (New York, 2014), commonly known as the Mauritius Convention on Transparency.

    24 July 2017

    Extended warranties have been attracting an increasing amount of regulatory scrutiny in recent years, leading law firms and litigation funders to consider launching class actions.

    07 July 2017

    Australian Government announces inquiry into the use of cladding, following the Grenfell disaster and reports that a number of buildings are suspected of non-compliant building materials.

    04 July 2017

    Where is the SICC now, and what has it achieved in international arbitration in its first two years?

    29 May 2017

    Legal services for your business

    This publication has been downloaded from the King & Wood Mallesons website. It is provided only for your information and does not constitute legal or other advice on any specific matter. If you require or seek legal advice you should obtain such advice from your own lawyer, and should do so before taking, or refraining from taking, any action in reliance on this publication. If you have any questions, please contact King & Wood Mallesons. See www.kwm.com for more information.