Crimes Legislation Amendment (Combatting Foreign Bribery) Act 2024 (5 of 2024)

Schedule 1   Amendments

Part 1   Main amendments

Criminal Code Act 1995

8   After section 70.5 of the Criminal Code

Insert:

Subdivision C - Failure to prevent bribery of foreign public officials

70.5A Failing to prevent bribery of a foreign public official

Offence

(1) A person (the first person ) commits an offence if:

(a) the first person is a body corporate:

(i) that is a constitutional corporation; or

(ii) that is incorporated in a Territory; or

(iii) that is taken to be registered in a Territory under section 119A of the Corporations Act 2001; and

(b) an associate of the first person:

(i) commits an offence against section 70.2; or

(ii) engages in conduct outside Australia that, if engaged in in Australia, would constitute an offence (the notional offence ) against section 70.2; and

(c) the associate does so for the profit or gain of the first person.

(2) Absolute liability applies to:

(a) paragraphs (1)(a) and (c); and

(b) the circumstance in subparagraph (1)(b)(i) that the associate commits an offence against section 70.2; and

(c) the circumstance in subparagraph (1)(b)(ii) that the associate engages in conduct outside Australia that, if engaged in in Australia, would constitute the notional offence.

(3) To avoid doubt, the first person may be convicted of an offence against subsection (1) because of the commission by the associate of an offence against section 70.2 even if the associate has not been convicted of that offence.

(4) Section 12.6 applies in relation to an offence against subsection (1) of this section as if the reference in section 12.6 to an employee, agent or officer of a body corporate included any associate of the body corporate.

Exception

(5) Subsection (1) does not apply if the first person proves that the first person had in place adequate procedures designed to prevent:

(a) the commission of an offence against section 70.2 by any associate of the first person; and

(b) any associate of the first person engaging in conduct outside Australia that, if engaged in in Australia, would constitute an offence against section 70.2.

Note: A defendant bears a legal burden in relation to the matter in subsection (5): see section 13.4.

Penalty

(6) An offence against subsection (1) is punishable on conviction by a fine not more than the greatest of the following:

(a) 100,000 penalty units;

(b) if the court can determine the value of the benefit that the associate obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence, or that would have constituted the notional offence, against section 70.2 - 3 times the value of that benefit;

(c) if the court cannot determine the value of that benefit - 10% of the annual turnover of the first person during the period (the turnover period ) of 12 months ending at the end of the month in which the associate committed, or began committing, the offence or notional offence against section 70.2.

Geographical jurisdiction

(7) Section 15.1 (extended geographical jurisdiction - category A) applies to an offence against subsection (1).

Indictable offence

(8) An offence against subsection (1) is an indictable offence.

70.5B Guidance on preventing bribery of foreign public officials

(1) The Minister must publish guidance on the steps that a body corporate can take to prevent an associate from bribing foreign public officials.

(2) Guidance under subsection (1) is not a legislative instrument.