2.66 The committee recommends that the Australian
Government prioritise the consideration and implementation of the
recommendations in the Phase 4 OECD report, and ensure that proposed
legislative changes to the foreign bribery offence and related measures to
strengthen Australia's foreign bribery regime are implemented or enacted
consistent with the Phase 4 OECD report.
3.105 The committee recommends that the Australian
Federal Police's (AFP) annual report incorporate specific information about the
Fraud and Anti-Corruption Centre (FAC), including de-identified data regarding
the number of referrals received, the number of matters allocated to the AFP
foreign bribery or FAC team, the number of investigations completed, the
resources devoted to these activities, and the number of investigations which
led to criminal/civil actions and the timeliness of such enforcement actions.
3.106 The committee recommends that consideration be
given to developing a contingency mechanism that explicitly provides for
additional one-off funding to appropriate agencies (Australian Federal Police,
Australian Securities and Investment Commission, Commonwealth Director of
Public Prosecutions) for large and complex investigation of foreign bribery
offences to ensure any allegations are thoroughly investigated, and where
appropriate, fully prosecuted.
3.107 The committee recommends that in considering the
report of the review of the enforcement regime of Australian Securities and
Investment Commission (ASIC), the government have regard to how any proposed
changes will help improve the enforcement of penalties by ASIC for foreign
bribery related offences.
4.15 The committee recommends that the definition of
'foreign public official' in section 70.1 of the Criminal Code Act 1995 be
amended to include candidates for office.
4.39 The committee recommends that the foreign bribery
offence apply in circumstances where the bribe of a foreign public official was
to obtain or retain a personal advantage.
4.102 The committee recommends that the Criminal Code
Act 1995 be amended to include a new corporate offence of failing to prevent
foreign bribery, and that principles-based guidance be published as to the
steps companies need to take in order to establish and implement adequate
procedures in relation to the new failing to prevent foreign bribery offence.
4.103 The committee recommends that as part of the
public consultation on the minister's guidance on adequate procedures in
relation to the new failing to prevent foreign bribery offence, the government
publish an exposure draft of the guidance and allow a period of no less than
four weeks for stakeholders to provide comment.
4.104 The committee recommends that the minister
finalise and publish the guidance on adequate procedures with sufficient time
before the commencement of the new failing to prevent foreign bribery offence to
allow companies to implement the necessary compliance measures.
4.118 The committee recommends that the foreign bribery
offence be amended to clarify that:
- a person is prohibited from bribing a foreign
public official to obtain a business advantage for someone else; and
- the payer of a bribe does not need to intend
to obtain or retain any specific business or business advantage to be guilty of
the foreign bribery offence.
5.72 The committee recommends that the government
introduce a deferred prosecution agreement scheme for corporations, supported
by a strong legislative framework which requires strict compliance and allows
for adequate responses in the event of a breach.
5.73 The committee recommends that, other than in
exceptional circumstances, deferred prosecution agreements be published,
together with details on how a company has complied with the terms and
conditions, and any breach, variation or termination.
5.74 The committee recommends that the Code of
Practice make provision for the appointment and methodology of independent
external monitors at the company's expense to monitor compliance with a
deferred prosecution agreement.
5.75 The committee recommends that as part of the
public consultation on the draft Code of Practice, the government publish an
exposure draft and allow a period of no less than four weeks for stakeholders
to provide comment.
6.85 The committee endorses the Parliamentary Joint
Committee on Corporations and Financial Services report on Whistleblower
Protections, and urges the government to work with the expert advisory panel to
expeditiously implement the committee's outstanding recommendations.
6.86 The committee recommends that the government
request the expert advisory panel on whistleblowers to consider whether the
scope of Australia's whistleblower protections provides sufficient coverage in
foreign bribery cases.
6.87 The committee recommends that the minister's
guidance on adequate procedures in relation to the new failing to prevent
foreign bribery offence include the existence of internal corporate
7.104 The committee recommends that the facilitation
payment defence currently provided for in section 70.4 of the Criminal Code Act
1995 (and the associated subsections 26-52(4) and 26-52(5) of the Income Tax
Assessment Act 1997) be abolished over a transition period, to enable companies
and individuals to adjust their business practices and procedures to comply
with the law as amended.
8.24 The committee recommends that Australian
Securities and Investment Commission expand the register of beneficial
ownership to require companies, trusts and other corporate structures to
disclose information regarding their beneficial ownership; and that this
information be maintained in a central register.
8.54 The committee recommends that the government introduce
a debarment framework that would ensure companies are required to disclose if
they have been found guilty of foreign bribery offences and give agencies the
power to preclude the tenderer from being awarded a contract.
8.83 The committee recommends that the government
provide practical guidance to companies to draw attention to domestic and
international guidance relating to foreign bribery, and to increase awareness
of the high-risk sectors and regions in which Australian businesses commonly
8.84 The committee recommends that clear information
be provided in the public domain about how and where an individual or a small
company should go to make a voluntary report of foreign bribery.
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