The Federal Government's proposal to remove the facilitation payments defence from Australia's anti-bribery laws would align Australia's laws with those recently introduced in the UK, according to Allens Arthur Robinson (AAR) senior associate Rachel Nicolson.
Chairing a meeting at yesterday's (15 November) launch of the Federal Government's anti-bribery discussion paper at AAR's Melbourne office, Nicolson explained how the proposal to remove the defence of facilitation payments would increase consistency in terms of what is expected by the different regulatory regimes of Australia and the UK - both of which may apply to Australian businesses, depending on where they have operations, because of their extraterritorial reach.
"Removing the facilitation payment defence would provide additional certainty for companies on this issue," said Nicolson. "When working to comply with these laws, it is often difficult to distinguish in policy and practice between what is a bribe and what is a facilitation payment. Removing this defence clarifies this issue."
Under Australian law, individuals can be jailed for 10 years and fined $1.1 million for offering or bribing foreign public officials in order to obtain business or an undue business advantage, while companies may be liable for a fine of up to $11 million (or three times the value of benefits obtained or 10 per cent of annual turnover).
Individuals and companies can claim a defence if the money paid constituted a facilitation payment - as long as the value of the benefit was of a minor nature, the purpose was to secure a routine government action of a minor nature, and the conduct was recorded.
Nicolson said companies should now be looking at their policies and rules surrounding facilitation payments and look to get ahead of the curve by amending them.
"Companies should also be considering what this means to their people on the ground in foreign countries and what those people need to be doing if confronted with a demand for a facilitation payment," she said.
The consultation paper, launched by the Minister for Justice Brendan O'Connor during a meeting of the United Nations Global Compact's Anti-Corruption Leadership Group for Business, is available at www.ag.gov.au/foreignbribery