Since the 1990s, multilateral treaties have called on states to implement a range of measures designed to combat bribery by private sector organisations. The anti-corruption treaties are enforced through multiple mechanisms of state-to-state (peer) review and are justified by reference to the multiple harms caused by corruption to economies and societies, particularly in the so-called developing world.
Australia appears to be at the forefront of global efforts to combat corruption by business enterprises: it has prohibited foreign bribery extraterritorially and has created detailed corporate criminal liability rules in its Criminal Code 1995 (Cth). However, as academics, non-government organisations and international monitoring bodies observe, there are enforcement gaps and legal loopholes in Australia’s regulatory strategy.
Linking the problem of anti-bribery regulation to the broader challenge of incentivising corporations to internalise social risk and self-regulate, this seminar will identify key gaps in the current Australian approach to transnational corruption control. It will bring together experts on criminal law, corporate law, and regulation with a view to evaluating options for reform in this jurisdiction and abroad.
Possible topics for discussion could include:
- The use of deferred and non-prosecution agreements, as modelled by UK and US federal law, to encourage corporate reporting and commitments to remedial compliance measures
- The introduction of a ‘failure to prevent’ offence, as in the Bribery Act 2010 (UK), in addition to or instead of the current general ‘corporate culture’ provisions in Part 2.5 Criminal Code 1995 (Cth)
- The meaning of ‘corporate culture’ in Australian state and federal law and its deployment in new regulatory strategies, e.g., as advanced by ASIC
- ‘Lessons learned’ from competition law and/or financial market regulation with respect to enforcement challenges and adaptations to procedural and/or substantive law
- The obligations on directors to prevent corruption within their organisations under Part 2D.1 Corporations Act 2001 (Cth) and at common law, as well as the effectiveness of the federal civil penalties regime