Draft guidance on adequate procedures to prevent the commission of foreign bribery

This submission concerning Draft guidance on adequate procedures to prevent the commission of foreign bribery (Draft Guidance) is made by the Foreign Corrupt Practices Committee (the Committee) of the Business Law Section of the Law Council of Australia.

The Committee welcomes the release of the Draft Guidance. The Committee endorses the content and scope of the Draft Guidance. In particular:

• The Committee considers that the Draft Guidance strikes an appropriate balance of the advantage of relative succinctness in analysis in guidance for business, while clearly specifying the key principles that should underpin adequate procedures.
• The Committee agrees with the specification of an overriding key principle of proportionality and with the five main indicators of an effective program as outlined in the Draft Guidance, noting that these key principles are consistent with the “six principles” in the UK Guidance¹ and the “hallmarks of an effective compliance program” in the US Guidance.²
• In that context the Committee does not consider it would be particularly helpful to go further and try to resynthesise, in the Draft Guidance or related materials, the huge body of resources available to entities that are properly alerted to the relevant principles and can easily access the materials that are available from overseas government agencies and NGOs.³
• The Committee encourages the Attorney-General’s Department to engage with the Commonwealth Director of Public Prosecutions and the Australian Federal Police so that the principles in the Draft Guidance are reflected in the various guidances that each of these agencies publish on the topic.

Read the full submission below.

^{1 Ministry of Justice, “The Bribery Act 2010: Guidance about procedures which relevant commercial organisations can put in place to prevent persons associated with them from bribing (section 9 of the Bribery Act 2010)”, March 2011 (UK Guidance).
2 “FCPA: A resource guide to the US Foreign Corrupt Practices Act”, second edition by the Criminal Division of the US Department of Justice and the Enforcement Division of the US Securities and Exchange Commission, July 2020 (US Guidance).
3 Including Transparency International, and also noting the important role that is and should continue to be played by Austrade in the Australian context.}

Last Updated on 28/06/2024

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