Reforming the foreign bribery offence
Currently, for someone to be found guilty of the offence of
foreign bribery, the prosecution must prove that the accused engaged in the
relevant conduct (the offering of an illegitimate benefit) with a guilty
intention of influencing a foreign public official in order to gain or
retain business or a business advantage that is not legitimately due.
The committee heard from stakeholders that, as there is often a
lack of written evidence available in foreign bribery cases, establishing the
relevant guilty intention by the accused is inherently problematic. Evidence
received by the committee suggested that, as bribes are often concealed by
corporations as legitimate payments, it is also difficult for the prosecution
to show 'beyond reasonable doubt' that both the benefit offered or provided,
and the business advantage sought, were not legitimately due. The Australian
experience also demonstrates the challenges of establishing criminal liability
for companies for the offence of foreign bribery within the current federal
As discussed in Chapter 2, in April 2017, the Attorney-General's Department
(AGD) released draft legislation and a public consultation paper outlining proposed
amendments to the foreign bribery offence (2017 consultation paper). Then in December 2017, the government introduced the Crimes Legislation
(Combatting Corporate Crime) Bill 2017 (CCC bill) which included some of the
amendments proposed in the April 2017 consultation. This bill is currently
before the Parliament and subject to inquiry by the Legal and Constitutional
Affairs Legislation Committee (L and C committee).
This chapter examines the amendments proposed in the 2017
consultation paper and the CCC bill. In so doing, it considers how the proposed
reforms to the foreign bribery offence may assist Australia to combat the bribery
of foreign public officials and ensure individuals and companies are held to
Including candidates for office in the definition of foreign public
The current definition of 'foreign public official' in section
70.1 of the Criminal Code Act 1995 (Criminal Code) does not include
candidates for office. As such, companies that bribe candidates for public office,
with the intent of obtaining business advantages once the candidate takes
office, are not captured by the current foreign bribery offence.
In line with the amendments proposed in the 2017 consultation
paper, the CCC bill seeks to amend the definition of 'foreign public official' to
include a person standing or nominated as a candidate for public office.
As explained in the 2017 consultation paper, the proposed
...would not prevent individuals or companies from making
legitimate donations to candidates for office, as the amended offence would
still require the prosecution to show that the benefit was provided, offered or
promised to improperly influence the candidate to obtain/retain an advantage.
However, the new offence would criminalise individuals or
companies where they 'seek to bribe candidates for public office, with the
intent of obtaining an advantage if the candidate takes office'. In their submission to the L and C committee's inquiry into the CCC bill, the
AGD highlighted that:
It is appropriate to criminalise this conduct given that it
has the potential to undermine good governance and free and fair markets and to
otherwise cause the same harm as bribery of a public official.
In their submission to the 2017 consultation, the Australian
Institute of Company Directors (AICD) supported the proposed extension of the
definition, emphasising that it would remove:
...a potential 'loophole' for an accused offender to avoid
prosecution, should the bribe have occurred before a public official's formal
appointment to office.
Allens Linklaters also highlighted that '[c]andidates for foreign
public office are vulnerable to influence in much the same way as foreign
public officials'. Allens Linklaters went on to explain that in their experience:
...many multinational corporations already prohibit their
employees from engaging in such conduct and, as such, we do not consider that
this amendment would materially, if at all, increase the compliance burden
faced by Australian corporations.
Indeed, in their submission to the 2017 consultation, BHP
Billiton supported the amendments and explained that pursuant to their current internal
Code Of Business Conduct, they do not contribute funds to any candidate for
public office in any country.
The committee considers it essential that Australia's foreign
bribery law operate to criminalise individuals and companies who seek to bribe
candidates for office, with the intention of obtaining an advantage if the
candidate takes office.
The committee is serious about combatting all types of corruption,
including political corruption. In this context, the committee acknowledges
that candidates for public office are vulnerable to influence in a similar way
to foreign public officials. Therefore, the committee sees no reason why a
bribe which occurred before a public official's formal appointment to office
should be treated any differently to a bribe received at, or after, such
appointment. The committee is concerned that the government has delayed taking action
to close this potential loophole.
The committee acknowledges that the CCC bill that is currently
before the Parliament seeks to amend the definition of 'foreign public
official' to include a person standing or nominated as a candidate for public
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.
Clarify offence of 'improperly influencing' a foreign public official
As noted above, showing that a benefit or business advantage was
'not legitimately due', particularly when payments are disguised as legitimate
business transactions, is difficult. Therefore, in line with one of the
suggested approaches in the 2017 consultation paper, the CCC bill seeks to
amend section 70.2 of the Criminal Code to replace these elements of the
offence with the concept of 'improperly influencing' a foreign public official
to obtain or retain business or an advantage.
While supportive of a move away from the concept of 'not
legitimately due', submitters to the inquiry raised concerns about the
introduction of the term 'improperly influence'. Indeed, some stakeholders
recommended the adoption of one of the two alternative approaches considered in
the 2017 consultation paper, which would replace the threshold of 'not
legitimately due' with the concept of 'dishonesty'.
Mr Tim Game SC, Co-Chair of the National Criminal Law Committee,
Law Council of Australia, raised concerns about the use of the term
'improperly' and informed the committee of the Law Council of Australia's
preference for the use of the concept of 'dishonesty'. Mr Game explained:
When one talks, for example, about improper use of position
in the Corporations Act there is usually a fiduciary duty in place against
which you can measure the impropriety. There is a real difficulty of measuring,
so it would just be left to a jury to decide if that was an impropriety. That
is a problem because there is no resting duty with the person that is doing the
thing in the first place. That other person, as you know, that could just be
their agent and that could be a corrupt agent. There is a problem there that
needs to be addressed. Our suggestion is that you use the language of
While acknowledging merit in the use of both of the concepts 'improperly
influence' and 'dishonesty', Mr Robert Wyld, the Immediate Past Co-Chair,
International Bar Association Anti-Corruption Committee (IBAACC), told the
committee that the IBAACC 'tended to
favour the use of the concept of dishonesty, as that is known under Australian
The AICD agreed, and went so far as to recommend against the
introduction of the concept of 'improperly influence', and supported the
adoption of a test of dishonesty. AICD explained:
One of the problems with this jurisdiction and this
particular crime is that there hasn't been any case law to assist in
interpreting the offences. We came to the view that the dishonesty test in the
offence, as opposed to essentially introducing a new concept, would be good,
because it would remove some of the uncertainty. It would introduce a concept
that is well-known in Australian law while still achieving what we need to
achieve under the OECD convention. That was our perspective. We did see that
the improvement suggested in the draft legislation had some merit in the sense
that it was consistent with the UK, I believe. But on balance, we thought that [the]
most quick and efficient way to achieve a good law in this area was to simply
use dishonesty, which is so well known and so well tested by the courts...
However, as acknowledged in the 2017 consultation paper, should
the concept of 'dishonesty' be introduced into the foreign bribery offence, it
would be necessary to decide which test of dishonesty will apply:
- The Ghosh test, as prescribed in the Criminal Code—which
provides that the conduct is criminally dishonest if it is both objectively
dishonest, according to the standards of ordinary people; and known by the
defendant to be dishonest according to the standards of ordinary people; or
- The Peters test, as adopted by the High Court—which
provides that the conduct is criminally dishonest if the fact-finder concludes
that 'ordinary, decent people' would consider the conduct to be dishonest.
Stakeholders had differing views as to which test of dishonesty ought
to be applied.
The Law Council of Australia suggested that if the concept of
'dishonesty' is introduced, the definition in the Criminal Code (the Ghosh test)
should be explicitly applied. In this context, Mr Game highlighted that if the
term is not defined as such, the test of dishonesty would probably revert to
the Peters test.
However, AICD had a preference for the Peters test because
it is objective and considered the Ghosh test to be 'quite convoluted'.
The Peters test, which simply requires the court to be
satisfied that the conduct was dishonest by the standards of an ordinary
person—in Australia, we might add—is a satisfactory and clear test. I
understand it's also consistent with the test of dishonesty in section 184 of
the Corporations Act. I would finally add that there has been some judicial
commentary in relation to the Ghosh test which points out its problems and its
confusing nature for juries. So in short, when you're trying to instruct the
jury as to the dual-part test, it's quite a difficult task. That's our
position. We think that that would be the clearest way forward.
Mr Wyld also informed the committee that IBACC tended to favour
the present certainty of the Peters test because it had been set by the
Why 'improper influence' and not 'dishonesty'?
The AGD considered that the proposed approach of 'improper
influence' as set out in the CCC bill 'is preferable'. They explained:
Some bribery does not involve dishonesty. For instance, where
a company provides an open 'scholarship' to the child of a foreign public
official. The scholarship is not necessarily intended to have a 'dishonest'
influence, if it is done transparently. However, it could still be done with
the intention of improperly influencing the foreign public official in
favouring the company when business is being awarded.
Subsection 70.2A(3) of the CCC bill lists matters that a trier of
fact may have regard to when determining whether influence is improper (the
list is non-exhaustive). The AGD clarified that:
It will be a matter for the trier of fact to determine
whether there has been improper influence on a case-by-case basis. The
explanatory memorandum provides a number of examples, in addition to explaining
the list of factors included in subsection 70.2A(3).
This list includes at paragraph 70.2A(3)(f) that a possible
factor for determining improper influence is whether the benefit was provided,
offered or promised dishonestly. In response to questions on notice posed by the Senate L and C committee,
the AGD explained that:
...dishonesty in this context would be determined according to
the standards of ordinary people and whether the defendant must have realised
what they were doing was dishonest according to those standards (i.e. the Ghosh
test)...[and] that dishonesty is not to be assessed by reference to the standards
in the location of the foreign public official.
The AGD argued that the Peters test is not appropriate
...it would be inconsistent with the definition of dishonesty
as it applies to other offences in the Criminal Code, for example bribery of
Commonwealth officials, abuse of office, forgery, fraud and general dishonesty
offences. In addition, given the gravity of the offence of intentionally
bribing a foreign public official, it is appropriate to have regard to both the
subjective and objective standard when considering whether the defendant behaved
The committee acknowledges the concerns raised by stakeholders regarding
the challenges of proving the current element of the foreign bribery offence
that a benefit or business advantage was 'not legitimately due'.
The committee observes that stakeholder opinion was divided as to
whether the current threshold of 'not legitimately due' should be replaced with
the concept of 'dishonesty' or to provide that the benefit must be 'improper'.
However, the committee notes that the proposed amendments in the CCC bill adopt
the latter approach because some foreign bribery does not involve dishonesty. The
committee also notes that 'dishonesty' is included as a relevant factor for
determining whether influence is improper under the proposed new offence.
Extend the offence to cover bribery to obtain a personal advantage
The current foreign bribery offence applies to bribery of foreign
public officials to obtain or retain business or business advantages. However, as suggested in the 2017 consultation paper, the proposed new offence in
the CCC bill would also apply where the bribe was to obtain or retain a
In their submission to the L and C committee's inquiry into the
CCC bill, the AGD explained that '[l]aw enforcement experience has shown in
some cases, foreign bribery can occur where the advantage sought is personal'. By way of example, the AGD stated that:
Personal advantages could include influencing a foreign
public official to bestow a personal title or honour, or in relation to
reducing personal tax liability. It is appropriate to criminalise this conduct
given that it equally undermines good governance.
The 2017 consultation paper clarified that if the offence was
extended in this way, 'the existing defences would be available' and '[t]he
CDPP [Commonwealth Director of Public Prosecutions] would retain the discretion
to prosecute matters which are in the public interest.'
The majority of submissions to the 2017 consultation paper
supported this proposed amendment. For example, the IBACC described the proposed amendment as:
...a sensible extension of liability to ensure that there is a
prohibition of payment of bribes to foreign public officials for personal as
well as business purposes.
The committee is of the view that bribery of a foreign public
official to obtain or retain business or business advantage should be treated
in the same manner as bribery of a foreign public official to obtain or retain
The committee recognises the importance of prohibiting all
conduct that undermines good governance, including foreign bribery where the
advantage sought is personal. The committee considers that the government's
action to close this potential loophole is overdue.
The committee acknowledges that the proposed new offence in the
CCC bill would also apply where the bribe was to obtain or retain a personal
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.
Corporate criminal liability in Australia
The Criminal Code provides for corporate criminal responsibility
at the federal level; with liability usually only resulting where both the physical element (the
conduct) and the fault element (the intention, knowledge, recklessness or
negligence) of an offence are satisfied.
The physical element of an offence will be attributed to a
corporation where it was committed by an employee, agent or officer acting
within the actual or apparent scope of his or her employment.
The fault element of an offence (for foreign bribery, a guilty
intention) will be attributed to the corporation where it is proved that:
- the corporation's board of directors intentionally or
knowingly carried out the relevant conduct or expressly, tacitly or impliedly
authorised or permitted the commission of the offence;
- a high managerial agent of the corporation intentionally
or knowingly engaged in the relevant conduct or expressly, tacitly or impliedly
authorised or permitted the commission of the offence;
- a corporate culture existed within the body corporate
that directed, encouraged, tolerated or led to noncompliance with the offence
- the body corporate failed to create and maintain a corporate
culture that required compliance with the relevant provision.
'High managerial agent' is defined in the Criminal Code to mean
an employee, agent or officer of the body corporate with duties of such
responsibility that his or her conduct may fairly be assumed to represent the
body corporate's policy. 'Corporate culture' is defined in the Criminal Code to mean an attitude,
policy, rule or practice existing in the corporation generally or in the part
of the corporation where the relevant offence was committed.
While the committee notes that each state and territory has its
anti-bribery laws which, for the most part, cover private sector bribery and
have uncertain extraterritorial application, the Australian experience demonstrates the challenges of establishing criminal
liability for companies for the offence of foreign bribery within the federal
New corporate offence of failing to
prevent foreign bribery
Under the proposed new corporate offence of failing to prevent
foreign bribery, as set out in the CCC bill, a company will be criminally
liable where, for the profit or gain of the company, an 'associate':
commits an offence under section 70.2 (the intentional bribery of
a foreign public official); or
- engages in conduct outside Australia that would constitute an
offence under section 70.2.
Of note is the exclusion in the CCC bill of the proposed foreign
bribery offence based on the fault element of recklessness as set out in the
2017 consultation paper. This is discussed in more detail below. However, it
should be noted that the 2017 consultation paper envisaged that such an offence
would have also applied to the new corporate offence of failing to prevent
foreign bribery; that is, a company would have been criminally liable where,
for the profit or gain of the company, an 'associate' recklessly bribed a
'Associate' is defined in the CCC bill as an officer, employee,
agent, contractor, subsidiary or controlled entity of the person/company. However, the explanatory memorandum to the CCC bill states that:
The definition of associate is also intended to have broad
application to a person who provides services for or on behalf of another
person. Such a person would not necessarily need to be an officer, employee,
agent, contractor, subsidiary or controlled entity.
'Subsidiary' is defined in Division 6 of the Corporations Act
2001 (Corporations Act). Pursuant to section 46 of the Corporations Act, a subsidiary
includes a body corporate that is incorporated outside of Australia and
otherwise meets the definition of subsidiary in the Act. Control of a body
corporate is also defined in Division 6 of the Corporation Act. Section 50AA
provides that an entity controls a second entity if the first entity has the
capacity to determine the outcome of decisions about the second entity's
financial and operating policies.
Importantly, under the new offence, corporate criminal liability will
be automatic, regardless of whether the persons involved are convicted; and a
defence will be available where a company can prove it had adequate procedures
to prevent and detect foreign bribery.
The 2017 consultation paper explained that this proposal is
similar to that which is provided for in section 7 of the UK Foreign Bribery
Act 2010 and that the provision would operate such that:
...a company would be automatically [strictly] liable for
bribery by employees, contractors and agents (including those operating
overseas), except where they can show they had a proper system of internal
controls and compliance in place to precent the bribery from occurring
The majority of submitters supported the proposed corporate
offence of failing to prevent bribery of a foreign public official. For
example, the Australian Council of Superannuation Investors suggested that
Australia harmonise its legal and enforcement framework for foreign bribery
with key international peer jurisdictions, such as the UK, and recommended:
That an offence of 'failure to prevent a culture of bribery',
or equivalent, be introduced into Australian law, in a manner consistent with
the overall corporate and director liability framework.
Mr Neville Tiffen agreed, arguing that holding a company liable
for an offence of failure to prevent foreign bribery, unless it can show it has
implemented 'adequate procedures', would help to create a corporate culture of
compliance in Australia.
Mr David Lehmann of KordaMentha Forensic also offered his support
for the new corporate offence of failing to prevent foreign bribery, noting
Aside from responsible ethical leaders setting and
reinforcing acceptable standards of business conduct, creating an incentive for
corporations to implement better, more effective antibribery compliance systems
is the key to organisational cultural change Implementing the proposed offence
of failing to prevent bribery of a foreign public official, with its exception
of adequate procedures, should go a long way to creating this incentive.
Mr Mark Pulvirenti of Control Risks, explained that under the
failure to prevent foreign bribery offence in the UK (to which the proposed new
corporate offence in Australia would be similar):
...there is a strict [automatic] liability, corporate-level
offence for which the only defence is the ability to demonstrate that adequate
procedures to prevent those things from happening were put in place. In
essence, it reverses the burden of proof. It puts it back onto the organisation
to demonstrate that proper practices and procedures were put in place to try
and prevent it. You're not going to always mitigate 100 per cent, but,
certainly in the circumstances, on the risks that a certain business faces,
proper procedures should be put in place and, if they're not, those criminal
charges at the corporate level should stand.
While offering their in-principle support for the introduction of
a corporate offence of the failure to prevent foreign bribery, some submitters
raised concerns about the reverse onus of proof and the extent to which
corporations can be held liable for the conduct of its subsidiaries.
Reverse onus of proof
Generally, the prosecution will bear the legal and evidential
burdens of proof and, unless otherwise provided, the standard of proof is
beyond reasonable doubt.
A legal burden requires proof of the existence of a matter; and
the evidential burden requires adducing or pointing to evidence that suggests a
reasonable possibility that a matter exists or does not. As proposed, the failure to prevent foreign bribery offence places the legal
and evidential burdens of proof on the company, not the prosecution (this is
often referred to as a reverse burden).
The AICD expressed the view that the failure to prevent foreign
bribery offence should include only a reverse evidentiary burden of proof,
arguing that it 'would still be a very serious offence with a substantial burden
of proof on the corporation' which '[c]ombined with the other offence proposals
that are suggested...would definitely be a significant improvement from where we
are now, from a prosecution point of view'.
The AICD argued that the failure to prevent foreign bribery
offence places an unnecessarily onerous burden of proof on corporations—requiring
a company to satisfy the legal burden that it has adequate procedures in place
to prevent the commission of a foreign bribery offence, combined with a reverse
onus of proof and absolute liability. The AICD stated:
Given that the purpose of the offence is to encourage corporations
to adopt processes to prevent bribery rather than to simply punish corporations
for the wrongdoing of their associations, the AICD recommends imposing the
evidential burden rather than the legal burden in this circumstance.
We are naturally hesitant around reversing the onus of proof.
Our suggestion in our submission to the Attorney-General's Department
recommended that, if that is the path that the government chooses to go down,
instead of the legal burden being attached to the defendant it be an
evidentiary burden. We believe that would, in fact, incentivise corporates more
effectively to be able to demonstrate fulsomely the compliance systems and
arrangements that they have in place...it would still be a very serious offence
that internal compliance frameworks would need to be constructed around.
The Law Council of Australia also raised concerns about attaching
absolute liability to a corporation unless they can satisfy the legal and
evidentiary onus. The Law Council of Australia suggested that:
If one is going to penalise this conduct, one has to penalise
it at a significantly lower level than one does the other conduct.
...the thing is that the corporation is made liable by the
other person's conduct, full stop. They have to bring themselves out of it by
...If you're going to have a persuasive onus on the defendant,
then you should recognise that this is a state of criminality that is satisfied
as an absolute offence. That should be reflected in penalty, because it's a far
less serious offence. I would look at that provision and I would think I'm
looking at a regulatory offence, but then I get to the end and I see you can
get fined a tenth of the company's turnover. That could be hundreds of millions
In their submission to the L and C committee inquiry into the CCC
bill, the AGD explained that it:
...is not persuaded by arguments that the offence should be
characterised as a regulatory breach (i.e. failure to implement adequate
procedures) and the penalty lowered accordingly.
The AGD reasoned that the policy intention of encouraging
corporations to adopt measures to prevent bribery is a sufficient justification
for departing from the generally accepted approach to framing offences because:
The new failure to prevent offence is intended to encourage
corporations to adopt adequate compliance measures to prevent bribery and to
more effectively address situations of wilful blindness on the part of
corporations' senior management...corporations will only be able to avoid liability
for this offence by proving that they had adequate procedures in place designed
to prevent an associate from committing foreign bribery. The corporation would
bear a legal burden in relation to this matter. The standard of proof the
defendant would need to discharge in order to prove the defence is the balance
of probabilities (section 13.5 of the Criminal Code)...Placing a legal burden on
corporations to prove the existence of adequate procedures will enable
prosecuting authorities to deal more appropriately with corporations where
senior management turn a blind eye to bribery occurring in their businesses.
The AGD defended the application of absolute liability to the
offence, arguing that it will:
...create a strong positive incentive for corporations to adopt
measures to prevent foreign bribery. Applying absolute liability to certain
elements of the new offence is necessary to ensure the effectiveness of the new
offence and the enforcement regime.
The government considers that there is a risk that requiring
the prosecution to prove specific fault elements in relation to this offence
may involve unnecessary complexity, also noting the traditional difficulties in
prosecuting foreign bribery offences...Specifically, it is necessary to overcome
challenges in establishing liability of corporate entities for foreign bribery,
and to ensure that corporations are not able to avoid liability through wilful
blindness. Attaching fault elements to this offence may also have the potential
to undermine the broad policy objectives of this legislation—which is aimed at
bringing about a shift in compliance culture across Australian industry.
With respect to the penalties that apply to the new offence, the
AGD's submission to the L and C committee's inquiry into the CCC bill advised
The maximum penalty for the proposed failure to prevent
bribery is the same as that for the existing foreign bribery offence (100 000
penalty units (currently $21 million), three times the value of the benefit
obtained if the court can determine its value, or 10% of the company’s annual
turnover (if the value of the benefit cannot be determined)). This reflects the
serious nature of bribery and corruption. It will ensure that the offence
serves as an appropriate deterrent to companies being wilfully blind to corrupt
practices within their business.
With reference to the AGD Guide to Framing Commonwealth
Offences, Infringement Notices and Enforcement Powers, the AGD highlighted
that in some circumstances, a specified maximum penalty may not provide a sufficient
deterrent. AGD observed:
It reflects that, in such circumstances, a maximum penalty
expressed as a multiple of the gain obtained through wrongdoing may be more
appropriate. This rationale applies to foreign bribery, where wrongdoing can
lead to substantial financial benefits and could involve large corporations,
for whom a specified maximum penalty may be insufficient deterrent. It is
appropriate that all companies can be held accountable for bribery by their
associates where they do not take steps designed to prevent such conduct from
occurring. In the United Kingdom, corporations that commit or fail to prevent
foreign bribery are punishable by an unlimited fine.
Extent of corporate liability
Some stakeholders drew the committee's attention to the potential
impact of the failure to prevent a foreign bribery offence on parent companies
for the conduct of their subsidiaries; in particular, regarding the proposal in
the 2017 consultation paper that the charge would also relate to the reckless
conduct of an 'associate'. As noted above, this proposal to include a foreign
bribery offence which would require a lower fault element of recklessness was
omitted from the CCC bill, and is discussed in more detail later in this
AICD expressed concern that the proposed offence for failure to
prevent foreign bribery by a subsidiary purports to pierce the corporate veil.
AICD observed that:
In some corporate groups a parent company has very limited
control over the day-to-day management of the subsidiary. You might even see
the situation where policies that are adopted by the parent company may be
deemed unsuitable by the directors of the subsidiary and rejected.
In light of this, AICD recommend that the offence 'be constructed
so that it would impose liability on a parent company for the conduct of its
subsidiary only where elements of control and fault are established'; and that 'the corporate veil should be lifted only where there is a compelling
Dr Mark Zrisnak, Director, Justice and International Mission,
Synod of Victoria and Tasmania, Uniting Church in Australia, informed the
I have heard from corporates that want to argue that it's
more difficult for them to keep control of all their employees, contractors and
subcontractors down the chain, but surely you should be accounting for where
your money's going at the end of the day, and a defence here would obviously be
that you reasonably took steps to know. If someone's clearly gone outside their
instructions in deliberate contravention of what you've asked them to do and
what they've agreed to do then clearly that would be a defence against a
Indeed, Dr Zirsnak's view was that 'where effectively the company
is prosecuted and the individuals don't get the deterrent effect that you are
seeking...You need individual accountability'.
Others also suggested that having the ability to pierce the corporate
veil and hold to account those who create corporate structures is essential to
helping address the issue of foreign bribery. For example, Mr Wyld stated that
IBAACC's view is that:
...for too long corporate structures have been used to
effectively hide and facilitate conduct which is improper. That's not to say
that in a vast majority of sound commercial transactions there cannot be, and
in fact should be and is, a proper relationship of parent, subsidiaries,
regional entities, joint ventures, other companies and agents and incorporated
associations, which act perfectly legally and do so quite properly. But,
unfortunately, the complexity of the type of foreign bribery that we continue
to see internationally is facilitated and generated by opaque financial and
corporate structures. Unfortunately, the reality is unless you start having a
philosophy that you pierce and are able to pierce that veil in a manner that
targets that sort of behaviour, we think it will not change....
Mr Tiffen also expressed concern about the way the draft
legislation is currently framed with respect to holding corporations to
account. Mr Tiffen stated:
I'm not quite sure that, in the way the draft legislation is
currently framed, it clearly picks up that a parent company is liable for its
subsidiaries, and I think it could be made clearer if that is the intention.
The other aspect is, as I said, the liability of directors for not having a
culture of compliance, or whatever words we end up with.
The AGD explained in their answers to questions on notice posed
by the L and C committee that the new offence of failing to prevent
foreign bribery by a corporation is similar to an offence that has been
successfully implemented in the UK. The AGD clarified that the offence:
- will be automatically triggered where an associate of the
corporation commits bribery for the profit or gain of the corporation.
Attaching absolute liability to the offence will address the issues Australian
prosecuting agencies have previously experienced with the lack of written
evidence to establish intention in foreign bribery cases; and
- creates an incentive for corporations to implement measures to
prevent bribery, because the only way for corporations to avoid liability is to
show that they had adequate compliance procedures in place. It will also serve
as a deterrent to corporations being wilfully blind to corrupt practices within
The AGD submitted that the objective of the CCC bill is not 'to
impose criminal sanctions against corporations with well-integrated compliance
regimes that experience an incident of corruption on their behalf'. The AGD explained:
...to achieve an appropriate balance between the objectives of
the legislation and the burden placed on corporations, a full defence is
available to corporations with adequate procedures under proposed subsection
70.5A(5). The Attorney-General will publish guidance under proposed section
70.5B to assist corporations to implement appropriate mitigation strategies,
and support the development of adequate procedures to prevent foreign bribery.
The thorough implementation of robust and effective steps to
prevent foreign bribery should result in a strong and genuine culture of
integrity. The government considers it reasonable to expect corporations of all
sizes to put in place appropriate and proportionate procedures to prevent bribery
from occurring within their businesses and to be required to prove the
existence of these procedures in instances of non-compliance.
As stated above, a company will not be liable under the new
failure to prevent foreign bribery offence where it can prove it had adequate
procedures in place to prevent and detect foreign bribery. Evidence to the
committee suggested that a company should be able to raise the defence where it
took 'reasonable steps' to prevent their 'associates' from engaging in bribery
and had an established system in place to ensure 'associates' are using funds
in the way in which they were intended.
In terms of guidance that should be put in place to inform
companies about the types of systems that would be required to satisfy the
defence, the committee heard evidence about the US hallmarks, UK principles and
International Standards Organisation Standard ISO 37001—Anti-bribery management
systems (ISO 37001).
The US hallmarks are part of the Resource Guide to the US Foreign
Corrupt Practices Act of 1977 (FCPA). The Resource Guide does not
include any mandatory standards or form of compliance programs, but stresses
that compliance programs are an essential component of internal risk management
and identifies the following 'hallmarks' of an effective compliance program:
- commitment from senior management and a clearly articulated
policy against corruption;
- a code of conduct and compliance policies and procedures;
- assignment of responsibility for oversight to a person with
adequate autonomy from management and sufficient resources to ensure effective
implementation of the compliance program;
- risk assessments of particular transactions so that unnecessary
resources are not devoted to low risk projects;
- training and continual advice for directors, officers, employees,
agents and business partners;
- inclusion of incentives and disciplinary measures that are commensurate
with the violation and apply across the organisation;
- education of third parties of internal policies and assurances of
reciprocal commitments and appropriate due diligence in relation to third
- reporting of misconduct internally and a procedure for internal
- periodic testing and review to ensure continuous improvement of
the compliance program; and
- FCPA due diligence in a mergers and acquisition context,
including incorporation of the acquired company into the acquiring company's
The UK principles were released by the UK Ministry of Justice as
part of its guidance to accompany the then new Bribery Act 2010 (UK). The six principles outline procedures which commercial organisations can put
into place to prevent persons associated with them from bribing and should be a
crucial focus for organisations of any size. The principles are:
- Proportionate procedures: The policies and procedures a
commercial organisation has in place to prevent bribery should be proportionate
to the bribery risks the organisation faces. Procedures should be aligned to
the nature, scale and complexity of the organisation's activities, while also
being clear, practical, accessible and effectively implemented and enforced.
- Top-level commitment: The top-level management of a commercial
organisation is defined by the nature of the individual company. It can be the
board of directors, the owners of the company or any other equivalent body or
person. Top-level management should be demonstrably committed to preventing
bribery by a person associated with it, fostering a culture within the
organisation in which bribery is never acceptable.
- Risk assessment: For any anti-bribery process to be consistently
effective, the organisation must assess the nature and extent of its exposure
to potential external and internal risks of bribery on its behalf by persons
associated with it. The assessment should be periodic, informed and well
documented. As business operations change and evolve, so will the risk facing
the organisation, and it is therefore imperative for regular re-assessment to
- Due diligence: Due diligence procedures must be applied, taking a
proportionate and risk based approach, with regard to the individuals who
perform or will perform services for or on behalf of the organisation. This is
crucial if identified bribery risks are to be mitigated.
- Communication: Organisations need to ensure that bribery
prevention policies and procedures are embedded and understood throughout the organisation,
via both internal and external communication. Communication should include
training that is proportionate to the risks the organisation faces.
- Monitoring and review: As an overarching principle, organisations
should monitor and review procedures designed to prevent bribery by persons
associated with it and make improvements where necessary.
ISO 37001 specifies requirements and provides guidance for
establishing, implementing, maintaining, reviewing and improving an
anti-bribery management system.
Mr Greg Golding of the Law Council of Australia suggested that the
US hallmarks and the UK principles are a 'very good starting point', and
indicated that most Australian companies already conduct themselves in
accordance with these standards.
Transparency International Australia favoured the UK principles
approach and recommended that Australia's guidance 'should in fact be a replica
of what the UK has, as a first step, because it's much more important to have
uniformity of approach'.
With regard to ISO Standards generally, Mr Wyld informed the
The ISO standards themselves are very thorough and very
detailed, and they're quite expensive and time-consuming for companies to
undertake the process and comply with them.
With respect to ISO 37001, the Law Council of Australia stated at
a public hearing in August 2017:
That [it] was only promulgated at the end of last year. There
are very few companies globally that are currently certified under that
standard. It's a very good standard, but internationally it is very early days
with that standard.
In discussing the copious amounts of guidance available to
companies and the key elements of a compliance program, Mr David Lehmann of
KordaMentha Forensic told the committee:
I don't necessarily think that just because you have an ISO
certification means you're making your best efforts to deal with the issues
specifically. I think what it gets back to is senior management and the board
setting the tone and the culture within their organisation...
Mr Lehmann suggested that:
What we should be doing is leveraging off the guidance that
is there already but making it relevant to our corporations—adopt the best of
the best that's going around but have our Australian emphasis on any guidance that's
provided to corporations.
Noting that the 2017 consultation paper suggested that the
minister issue guidance on what are, in effect, to be regarded as adequate
procedures, Mr Wyld commented:
...I'm not sure you can go into too much detail, because the
more detail you have the more prescriptive it becomes and then it becomes a
tick-the-box mentality—'I've done this and done this' and therefore I have
adequate procedures...it's far better to have broader concepts and to address the
fundamental issues of behaviour and characteristics.
Other submitters also emphasised the importance of avoiding a
tick-the-box mentality. For example, Transparency International Australia
The tick box is absolutely the bare minimum, but, if you tick
the box, you behave badly and you are still a corporate hero, then you've [the
government] achieved nothing.
Some stakeholders also suggested that internal corporate
whistleblowing systems should form part of the adequate procedures designed to
prevent foreign bribery. This is discussed in detail in Chapter 6.
Minister's guidance on adequate
Proposed section 70.5B of the CCC bill provides that the minister
must publish guidance on the steps a body corporate can take to prevent an
associate from bribing foreign public officials. As discussed above, under
proposed section 70.1 of the CCC bill, an associate includes a person who is an
officer, employee, agent, contractor, subsidiary, or a person who otherwise
provides services for or on behalf of the corporation.
To assist body corporates to determine the extent to which they
may be liable for parties 'down the supply chain', the AGD explained that they
anticipate that the ministerial guidance:
...will discuss the concept of 'associate' and its practical
application to measures that a body corporate can take to prevent foreign
bribery by its associates. The timing for issuing the guidance will be a matter
for government, but will occur prior to the commencement of the 'failing to
prevent' offence (which will commence 6 months after Royal Assent).
In addition, AGD confirmed that it 'intends to publicly consult
on the draft guidance'.
In response to questions on notice posed by the L and C committee
in relation to the inquiry into the CCC bill, the AGD explained that the
...will be principles-based, aimed at helping corporations
understand the steps they can take to prevent bribery of a foreign public
official. The guidance will help corporations understand the policies and
procedures they may put in place to implement robust and effective steps to
prevent foreign bribery, according to their specific circumstances.
Corporations that are able to point to the existence of
well-integrated compliance regimes would be able to establish the defence in
proposed subsection 70.5A(5).D.
In addition, the AGD confirmed that, in line with the preference
of industry stakeholders to the 2017 consultation, the guidance will be
informed by the guidance issued by the UK Ministry of Justice in relation to
section 9 of the Bribery Act 2010 (UK). Further, AGD advised that:
In preparing this guidance, the department will also have
regard to other existing guidance, including that published by the Australian
Trade Commission; United States Department of Justice; International
Organization for Standardization; and OECD, UNODC [United Nations Office on
Drugs and Crime] and World Bank.
The AGD suggested that, while it is reasonable to expect
corporations of all sizes to put in place appropriate and proportionate
procedures to prevent bribery from occurring within their business, the
application of steps to prevent foreign bribery will differ substantially from
corporation to corporation:
It is not reasonable to expect small and medium-sized
enterprises to put in place a compliance program of the same size that would be
required of a large multi-national corporation. Similarly, a corporation with
limited exposure to foreign bribery risk should not be expected to take
mitigation measures as extensive as another corporation that has a
significantly greater risk profile. 
The committee notes that evidence presented demonstrates that
foreign bribery often occurs in instances of wilful blindness by senior
management to activities occurring within their corporations. In addition, the
committee observes the difficulties surrounding proving intention where there
is often a lack of readily available written evidence.
The committee considers that introducing a corporate offence of
failing to prevent foreign bribery in Australia is overdue. Where corporations
fail to take steps to prevent foreign bribery from occurring, they should be
held to account for foreign bribery by their associates. For too long the law
has protected those who facilitate and generate opaque financial and corporate
structures from being criminalised for corrupt behaviour.
The committee acknowledges that the CCC bill proposes a new
corporate offence of failing to prevent foreign bribery, where a company will
be criminally liable when, for the profit or gain of the company, an
'associate': commits an offence under section 70.2 (the intentional bribery of
a foreign public official) of the Criminal Code; or engages in conduct outside
Australia that would constitute an offence under section 70.2 of the Criminal
The committee notes concerns raised by industry stakeholders that
the failure to prevent foreign bribery offence places a heavy burden of proof
corporations—requiring a company to satisfy the legal burden that it has
adequate procedures in place to prevent the commission of a foreign bribery offence,
combined with a reverse onus of proof and absolute liability. However, in the committee's
view it is appropriate to require corporations to prove the existence of an
adequate compliance regime. In this context, the committee notes that
introducing such an offence would simply be bringing Australia in line with
comparator jurisdictions, such as the UK—only nearly a decade later.
The committee also notes that wrongdoing can lead to substantial
financial benefits and could involve large and lucrative corporations. It is
therefore important for the available penalties to be a sufficient deterrent.
respect to the minister's guidance that is to be issued on adequate procedures,
the committee is of the opinion that a principles-based approach is preferable
to a tick-a-box checklist. The committee also cautions that it is important for
the minister's guidance be designed such that it is of general application to
corporations of all sizes and in all sectors. To ensure the minister's guidance
will achieve its stated objective, the committee is of the opinion that
adequate consultation must be undertaken on any draft guidelines. In addition,
to allow companies sufficient time to implement the appropriate changes and to
help encourage a culture of compliance, the minister's guidance should be
finalised and published well in advance to the commencement of the new failing
to prevent foreign bribery offence.
committee acknowledges that the CCC bill provides that the minister must
publish guidance on the steps a body corporate can and should take to prevent an
associate from bribing foreign public officials.
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.
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
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.
Other reforms to the foreign bribery offence
Remove the requirement of influencing
a foreign official 'in their official capacity'
current foreign bribery offence requires that the bribe be provided, promised
or offered with the intention of influencing a foreign public official 'in the
exercise of their duties as foreign public official' to obtain or retain
business or an advantage that is not legitimately due.
amendments proposed in the 2017 consultation paper and the CCC bill remove the
requirement that the foreign official must be influenced in the exercise of the
official's duties. The AGD explained that this requirement placed:
...an unnecessary burden on the prosecution to prove the scope
of a foreign public official's duties. Additionally, proof of foreign official
duties relies on international legal assistance processes, which can be
protracted or unsuccessful.
submissions to the 2017 consultation, the Export Council of Australia and
Control Risks supported the proposed amendment. Control Risks explained that:
...it is irrelevant whether the official is improperly
influenced either within or beyond their official duties. The current wording
simply provides one more hurdle for the prosecution to overcome, which does not
contribute to the intention of the legislation.
the Law Council of Australia and IBACC suggested that further consideration should be given to removing the
requirement of influencing a foreign public official 'in their official
capacity', and that widening the definition of the foreign public officials
capacity may be better course of action. In this context, IBACC urged caution:
to ensure that the criminal nature or otherwise of the bribe
in a personal or business matter does not depend on the status of the recipient
as a public official or private individual.
Clarify that business or business advantage
can be obtained for someone else
its current form, the Australian foreign bribery offence is ambiguous as
to whether it covers instances where a person provides, promises or offers a
in order to secure business or a business advantage for another person. As acknowledged by the government in the 2017 consultation paper:
The Anti-Bribery Convention clearly intends to criminalise
bribery of foreign public officials where bribery is carried out by one person
to secure business for another person. The Commentaries to the Anti-Bribery
Convention note that 'the conduct ... is an offence whether the offer or promise
is made, or the pecuniary or other advantage is given, on the person’s own
behalf or on behalf of any other natural person or legal entity.'
US, UK, Canada and New Zealand all explicitly provide that a person who obtains
the business does not have to be the same person who provides or offers the
submissions to the 2017 consultation, Control Risks, Australia-Africa Minerals
& Energy Group (AAMEG), and Allens Linklaters were among those stakeholders
who endorsed the proposed change to clarify that business or business advantage
can be obtained for someone else.
Clarify that the accused need not
have a specific business or business advantage in mind
the 2017 consultation paper and the CCC bill propose amendments to clarify that
there need not be a specific business or business advantage intended to be
secured when providing or offering the bribe.
majority of submitters to the 2017 consultation process supported the proposed
amendment to clarify that the payer of a bribe does not need to intend to
obtain or retain any specific business or business advantage. The IBAACC explained that as a result of the proposed change:
...the offence would cover situations where a person is, for
example 'currying favour' with the intention that a foreign public official
would assist in providing an unspecified, undue or improper advantage in the
committee agrees with stakeholders that in determining whether a foreign public
official is improperly influenced, it is irrelevant whether the official is
improperly influenced within or beyond their official duties. To ensure
Australia's foreign bribery legislation is operating as intended, and that
prosecution of foreign bribery matters are not unnecessarily protracted, the
committee believes consideration should be given to removing the requirement
that the foreign public official must be influenced in the exercise of the
committee notes that the OECD Convention on Combating Bribery of Foreign Public
Officials in International Business Transactions clearly intends to criminalise
bribery of foreign public officials where bribery is carried out by one person
to secure business for another person—whether the offer or promise is made, or
the pecuniary or other advantage is given, on the person's own behalf or on
behalf of any other natural person or legal entity. The committee also notes
that the US, UK, Canada and New Zealand have explicitly provided that a person
who obtains the business does not have to be the same person who provides or
offers the benefit. In this context, the committee is disappointed the
government has delayed taking action on this uncontroversial issue, to clarify
that a person is prohibited from bribing a foreign public official to obtain a
business advantage for someone else.
committee is of the view that there is no reason why the Criminal Code should
not be amended to make it clear that 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. As stated above, the committee is very concerned
that the government has delayed taking action to clarify the operation of the
committee acknowledges that the CCC bill proposes to remove the requirement
that a foreign official must be influenced 'in their official capacity'. In addition
the CCC bill clarifies that the business or business advantage can be obtained
for someone else; and that 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.
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
Introducing a lesser offence of recklessness
the difficulties that arise in proving direct criminal liability under
Australia's foreign bribery provisions, for the most part, submitters welcomed
the suggestion of a foreign bribery offence which would require a lower fault
element of recklessness as proposed in the 2017 consultation paper (but omitted
from the CCC bill). However, concern was noted with regard to how it would
operate with the proposed new corporate offence of failing to prevent foreign
the proposed recklessness offence would still require the prosecution to prove
intention as to the conduct of providing, promising or offering the benefit, it
would only require proof that a person was reckless as to the circumstance; that
is, the person was aware of a substantial (and unjustifiable) risk that the
conduct of providing the benefit would improperly influence a foreign public
official in relation to obtaining or retaining business or an advantage.
penalty for the new recklessness offence proposed in the 2017 consultation
paper was half of the corresponding intention offence. The 2017 consultation paper also noted that these penalties are comparable to
those imposed under the Criminal Code for money laundering and false accounting
offences. The paper explained that the recklessness offence was aimed to:
- ensure that foreign bribery offences are of greater utility in
addressing foreign bribery (which often occurs in situations where it is
difficult to establish intention) while at the same time differentiating
between differing degrees of culpability; and
- serve as a deterrent and encourage greater vigilance in
providing, offering or promising benefits in circumstances where there is a
substantial risk that a foreign public official will be improperly influenced
by this conduct.
Shane Kirne of CDPP commented that 'from a prosecutor's perspective, obviously,
it's a lower test'. However, Mr Kirne went on to state that:
It's still quite a high test—an awareness 'of a substantial
risk that the circumstance exists' and 'it is unjustifiable to take that risk'.
Cindy Davids, Associate Professor, School of Law, Deakin University, argued
that 'there is practical value in extending the fault element for the conduct
component...to include recklessness as a less serious alternative'. Mr Mark Pulvirenti, Control Risks, agreed, explaining that he saw the
new offence based on the fault element of recklessness working in a situation 'where
an organisation allows a payment to be made and intent can't necessarily be
proved but, in the circumstances, it was reckless for the amount to have been
Zirnsak of the Justice and International Mission, Synod of Victoria and
Tasmania, Uniting Church in Australia, reflected on how the proposed
recklessness offence would operate with the existing intention offence:
I think you normally would have both categories, so
intentionality would normally attract a greater penalty than 'reckless', if the
state's able to prove there was an intention to pay a bribe to achieve an
outcome, or to pay a bribe even while being uncertain about the outcome, versus
simply being reckless in the payments. I think in this case Australia should
lead with this. I think it would send a signal to companies about being more
cautious when they make payments and about the way they do business...
Mr Wyld, representing the IBAACC, suggested that creating two levels of
offences, 'one an intentional offence and the other a reckless offence', would
be a 'significant improvement'.
Why the fault of element or
recklessness was excluded from the CCC bill
AGD stated that the rationale for excluding the fault element of recklessness
in section 70.2 of the CCC bill was:
...after considering the benefits and disadvantages of an
offence of recklessly bribing a foreign public official, including views
expressed in submissions received in response to the April 2017 discussion
paper, the government elected not to proceed with a recklessness offence.
AGD's submission to the L and C committee's inquiry into the CCC bill detailed
the following benefits which would be achieved as a result of the introduction of
a recklessness offence:
- address challenges in obtaining necessary and sufficient evidence
from overseas to prove intention—due to the nature of foreign bribery, relevant
conduct almost exclusively occurs overseas; the target of the bribe may also be
located in a country that is unwilling to cooperate in relation to the bribery
of one of its public officials;
- address challenges in establishing intention where the conduct is
historical—in the foreign bribery context, investigations most often commence
after a company has self-reported, after media reporting, or after a
whistleblower has come forward;
- overcome instances where it is difficult to obtain sufficient
documentary evidence—as foreign bribery usually occurs in a business setting,
persons involved exercise great caution and transact verbally or face-to-face,
again usually overseas, with witnesses also overseas; and
- serve as a greater deterrent and encourage greater vigilance in providing,
offering or promising benefits in circumstances where there is a substantial
risk that a foreign public official will be improperly influenced by this
AGD's submission to the L and C committee's inquiry into the CCC bill also
noted that both the Australian Federal Police and the CDPP supported the
creation of a recklessness offence as 'it would effectively capture instances
of wilful blindness by suspects, including senior company officers (such as
directors)'. The submission explained:
Most foreign bribery cases involve bribes paid by third
parties in circumstances where the suspects (individuals and companies) are
wilfully blind as to the activities of their agents (including employees,
subsidiaries and third party agents).
the AGD stated that:
After balancing these arguments against other views expressed
in submissions received in response to the April 2017 discussion paper, the
Government elected not to proceed with a recklessness offence.
response to questions notice posed by the L and C committee regarding the CCC
bill inquiry, the AGD noted the following concerns expressed by stakeholders in
response to the 2017 discussion paper:
- the offence would set too low a standard for culpability;
- it would be difficult for corporations to develop policies and
procedures that govern the assessment of an unjustified substantial risk in the
context of foreign bribery, which is complex by nature and can be particularly
difficult to identify and easy to conceal; and
- a recklessness offence would be inconsistent with international
AGD also defended the decision not to adopt a recklessness offence based on the
fact that comparator jurisdictions, such as the US and the UK, had also not
adopted such an offence. The AGD observed that:
The US and UK have not adopted a recklessness offence. The US
Congress has previously considered and rejected a 'reckless disregard' fault
standard with respect to the Foreign Corrupt Practices Act 1977, and in 2008
the UK Law Commission rejected the inclusion of recklessness as a fault element
for foreign bribery in the now Bribery Act 2010.
committee notes that the proposal in the 2017 consultation paper to include a
foreign bribery offence which would require a lower fault element of
recklessness is omitted from the CCC bill.
committee acknowledges that the offence of failing to prevent foreign bribery
will go some way to addressing wilful blindness on the part of companies.
However, without a recklessness offence, it is possible that companies and
individuals may still be able to structure their affairs in ways which allow
them to limit or avoid exposure to criminal liability for conduct that should
is apparent to the committee that Australia's current laws are not operating to
effectively criminalise and deter companies and individuals who are engaging
foreign bribery. While the committee notes that neither the US nor the UK, have
progressed a recklessness offence, it should not be ruled out.
committee notes that the proposal to introduce a new separate foreign bribery offence
based on recklessness is not required for Australia to meet its obligations
under the OECD Convention on Combating Bribery of Foreign Public Officials in
International Business Transactions. However, upon such time that a future
review is undertaken of Australia's foreign bribery regime, the committee
suggests that a new separate foreign bribery offence based on recklessness,
with the proposed maximum penalty being half that of the corresponding
intention offence, be further explored.
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