The new OECD Anti-Bribery Convention Recommendation – An Australian perspective

Introduction

On 26 November 2021, the OECD Working Group on Bribery (WGB) adopted a revised Recommendation of the Council for Further Combating Bribery of Foreign Public Officials in International Business Transactions (Recommendation). The Recommendation has been introduced in order to ensure vigorous and comprehensive implementation of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Convention), including by enhancing the enforcement of the offence of bribery of foreign public officials.

On 2 December 2019, the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 (Cth) (Corporate Crime Bill) was introduced to the Australian Parliament. It modified an earlier Bill that had been introduced in 2017 but which lapsed on the dissolution of Parliament in May 2019. The Corporate Crime Bill seeks to address challenges associated with detecting and addressing serious corporate crime in Australia. The Corporate Crime Bill is available here.

One of the purposes of introducing the Corporate Crime Bill was to enable Australia to improve its effectiveness in addressing foreign bribery and remove undue impediments to a successful prosecution. If enacted, the Corporate Crime Bill will align Australia more closely with its obligations as a member of the OECD Anti-Bribery Convention. 

Notwithstanding the delays since 2017, the Australian government may further revise the Corporate Crime Bill to incorporate the key recommendations with respect to the enforcement of the offence of bribery of foreign public officials.

Key Recommendations

The key recommendations for Australian business, adopted by the OECD, were as follows:

Recommendation 1: Raising awareness of bribe solicitation risk, with particular attention on high-risk jurisdictions as a way to address the demand side of corruption. Periodic reviews of facilitation payments and policies should be implemented or, alternatively, companies are encouraged to either prohibit or actively discourage any use of facilitation payments.

Recommendation 2: Encouraging consideration of a variety of forms of resolution, including non-trial resolutions (often known as “deferred prosecution agreements” or DPAs) when resolving criminal, administrative and civil cases involving both corporations and individuals. Non-trial resolutions refer to mechanisms used to resolve matters without a full court or administrative proceeding based on a negotiated agreement between a prosecuting authority and, traditionally, a corporation.

Recommendation 3: Establishing and publicising clear policies and procedures by which any individual can report suspicions of bribery of a foreign public official and related criminal offences to competent authorities (the Australian Federal Police) by allowing confidential and, where appropriate, anonymous reporting and establishing protections for reporting persons.

Recommendation 4: Incentivising countries to consult and co-operate with competent authorities in other jurisdictions in the investigation and prosecution of bribery offences within that country’s jurisdiction.

Recommendation 5: Encouraging companies to develop and adopt adequate internal controls, ethics and compliance programs or measures for the purpose of preventing and detecting foreign bribery, using the OECD Good Practice Guidance on Internal Controls, Ethics and Compliance (Guidance) (adopted February 2010) as a benchmark. The Guidance is available here.

Recommendation 6: Encouraging a more nuanced view of the use of debarment against corporations who engaged in unethical or illegal conduct. (This is a practice hardly used by governments in Australia; rather the opposite seems to be the case with contracts being awarded in the past to Australian corporations debarred by international institutions). In particular, encouraging governments not to use debarment as a hammer to crack and break a nut, but instead rewarding corporations who mitigate and remediate past practices, so as not to cut off public procurement contracts.

Practical Implications for business

The Recommendation is just that, a recommendation. However, given the extensive negotiations that took place between OECD participants in the WGB, including Australia, the current Corporate Crime Bill seeks to bring Australia in line with its obligations under the Anti-Bribery Convention. There is a strong likelihood that the Corporate Crime Bill will be amended to reflect the Recommendation.

Australian companies should pay careful attention to the Recommendation, particularly those with operations in high-risk overseas jurisdictions. For instance, the Recommendation is likely to reignite the debate as to facilitation payments, which to date remain permissible under Australian law in certain very limited circumstances. To a very large degree, facilitation payments are banned in most countries and actively banned by many international and Australian multinational corporations. They are notoriously difficult to identify and regulate. The more a company starts or continues to make facilitation payments as the price of doing business or simply because they believe they have no choice, the more such payments start to walk, quack and talk like bribes.

The Corporate Crime Bill includes a DPA regime. While DPAs would be a welcome addition for Australian regulators, there remains a raft of unanswered questions as to how the process will work in practice, the process of independent review, the publication of reasons (for the benefit of business generally) and any unintended consequences for companies dealing with multi-jurisdictional investigations when they are faced with the consequences of admitting to facts constituting criminal conduct.

Lastly, the Recommendation again makes it clear, as does almost every publication on the topic of business ethics and misconduct, that corporations should stress test internal procedures and subject them to regular internal (and external) audit. While promoting “good corporate culture” can be a challenge, it is a challenge that Boards of Directors should accept. There is no doubt that a corporation with a solid, ethical and sustainable cultural framework will be considerably better for all stakeholders than an organisation that seeks merely to get the best deal at the best price, whatever the conduct is to get the deal. Short term gain can so often result in long term reputational damage.