Comparing the Scope of Corporate Liability for Foreign Bribery under Australian and American Law

Published on 22 February 2018 at 3:20pm

I Introduction

The scope of corporate liability for foreign bribery is an issue that continues to dominate global political debate. In 2016, the United States experienced the biggest enforcement year in the history of foreign bribery laws, retrieving approximately US$2.48 billion from 27 companies.[1] However, the high enforcement of these anti-bribery laws is vulnerable to political interference and is experiencing a dramatic decline under the new administration. [2] Conversely in Australia, the government is seeking to increase the scope of corporate liability through heightened enforcement of foreign bribery laws.[3] Since the laws were first enacted in 1999, there have been few successful convictions.[4] In an attempt to improve enforcement figures, the government has provided the Australian Federal Police with an AU$15 million boost in funding to combat foreign bribery and recently tabled a Bill in Parliament proposing to broaden the reach of the current offence and also to create a new strict liability offence for failing to prevent foreign bribery.[5] Anti-bribery laws are justifiably a matter of great political concern as foreign bribery places a heavy burden on the global economy, with the World Bank estimating the annual cost of bribery to be US$1 trillion.[6]

Despite significant differences in enforcement trends, the scope of corporate liability for foreign bribery is largely similar under American and Australian law. This essay will begin with a brief comparison of the range of corporations that are affected by foreign bribery laws in America and Australia. Secondly, it will compare and contrast the key elements of the respective foreign bribery offences and defences in both jurisdictions. Subsequently, there will be an analysis of the scope of corporate culpability for bribes by employees under American and Australian law. Finally, the essay will conclude with an examination of false accounting provisions that broaden the scope of corporate liability for foreign bribery.

II Corporations Affected by Foreign Bribery Laws

The scope of corporate liability for foreign bribery in America and Australia extends to domestic and extraterritorial corrupt actions so long as there is a loose territorial or personal connection to the criminalizing jurisdiction.[7] The Foreign Corrupt Practices Act (‘FCPA’) is the principal United States statute governing foreign bribery.[8] The FCPA’santi-bribery provision applies to US nationals, including US issuers and firms incorporated in the US. [9] However, foreign corporations can also be liable under the FCPA if they corruptly use the mails or any instrumentality of interstate commerce to perform an act in furtherance of the bribe ‘while in the territory of the US’.[10] Foreign corporations may also be liable if they have the US as their principal place of business or if they are foreign issuers of US securities.[11] For example in 2008, German conglomerate company Siemens was subject to US jurisdiction by virtue of being listed on the US stock exchange and was fined US$1.6 billion under the FCPA for paying bribes in Asia, Africa, Europe, the Middle East and the Americas.[12]

Fewer corporations are covered by Australian anti-bribery laws under the chief Australian bribery offence encapsulated in s 70.2 of the Criminal Code Act 1995 (Cth) (‘Criminal Code’). Pursuant to this provision, a corporation is liable for foreign bribery under Australian law if the corporation is incorporated in Australia. [13] Corporations incorporated outside Australia are only liable if the conduct constituting the offence occurred wholly or partly in Australia or on board an Australian aircraft or ship.[14] The only two corporate convictions achieved under Australian law both involved corporations incorporated in Australia. The first corporate conviction involved large-scale corruption linked to two Australian companies, namely Securency and Note Printing Australia, which were owned by the Reserve Bank of Australia.[15] Former executives and managing directors of these companies were charged, and some convicted, for paying up to AUD$17 million in foreign bribes to win banknote printing contracts in countries such as Vietnam, Malaysia, Indonesia and India.[16] The second successful foreign bribery prosecution involved the Elomar brothers, the directors and equal shareholders of Lifese, who all pled guilty to bribing an Iraqi official with US$1 million in order to secure construction contracts.[17] Overall, the ambit of corporate liability for foreign bribery is notably wider under American law compared to Australian law primarily because the former has greater extraterritorial reach.

III The Elements of Foreign Bribery

Under American law, corporations commit foreign bribery when they offer, pay, promise to pay or authorise the payment of money or ‘anything of value’ to any foreign official in order to influence their official actions or secure ‘any improper advantage’.[18] Australian law stipulates that corporations commit foreign bribery when they provide, offer or promise to provide a benefit to another person or cause a benefit to be provided, offered, or promised to another person where the benefit is not legitimately due and there is an intent to influence a foreign public official in the course of his duties to retain or obtain business or a business advantage.[19] In America, corporations who breach the FCPA face fines of up to US$25 million and disgorgement of profits.[20] In Australia, corporations can be fined the greater of AU$21 million or three times the value of the benefit received or, if the court cannot calculate the value of the benefit, 10% of the corporation’s annual turnover.[21] Ultimately, American and Australian anti-bribery provisions are comprised of similar key elements including the need for a foreign official, ‘anything of value’ or a ‘benefit’, a business purpose, intent to influence as well as affirmative defences and exceptions to the statutes.

A Foreign Officials

Both jurisdictions retain a broad definition of foreign officials in order to expand the ambit of potential liability. Under American law, a ‘foreign official’ includes any officer or employee or ‘any person acting in an official capacity for or on behalf of’ a public international organisation or ‘a foreign government or any department, agency or instrumentality thereof’.[22] This definition is sufficiently broad to encompass various categories of officials including low-level employees and potentially even individuals in state-owned or state-controlled entities.[23] Australian anti-bribery laws are targeted against bribing ‘foreign public officials’ who are broadly defined under the statute to include an employee/official of a foreign government, a member of the executive, legislature, judiciary or magistracy of a foreign country, a person who performs official duties under a foreign law or an employee or official of a public international organisation (including the United Nations).[24] Despite obvious similarities, a key difference between these two provisions is that American law extends corporate liability to include bribes to a foreign government ‘instrumentality’. An instrumentality has been defined to encompass an entity ‘controlled by the government of a foreign country that performs a function the controlling government treats as its own’.[25] This significantly expands the scope of corporate liability under the FCPA, as corporations can be liable for bribing an instrumentality even where the foreign government officially declares the instrumentality is not a state enterprise.[26]

B ‘Anything of Value’ and a ‘Benefit’

Under American and Australian law, a corporation must respectively provide ‘anything of value’ or a ‘benefit’ in order to be liable for foreign bribery. American law stipulates that ‘anything of value’ is a broad concept that does not have any de minimis exception so that a corporation could be liable for even a small bribe to secure a modest contract. As Associate Director in the Securities and Exchange Commission’s Division of Enforcement observed, ‘a bribe is a bribe, whether it’s a stack of cash or an all-expense paid trip to Europe’.[27] For example, the payment of travel expenses, free trips to popular tourist destinations or ‘executive training programs at US universities’ for foreign officials is sufficient to amount to a thing of value for the purposes of US foreign bribery laws.[28] However, there is an absence of clear executive or judicial guidance on the precise ambit of the term, ‘anything of value’. [29] The ambiguity of this element of the offence significantly broadens the scope of a corporation’s liability, as federal agencies are able to use the term to justify criminalising a wide range of foreign corporate transactions, including charitable contributions, employment to a relative of the official, below-market rate interest, gifts and travel expenses.[30] A corporation is also criminally liable under the FCPA for indirect payments, namely payments offered or made by another agent or intermediary where the corporation authorised the payment, knew that it would be offered or made or was aware or firmly believed that the offer or payment was substantially certain to occur.[31]

Under Australian law, a ‘benefit’ is broadly defined under the Criminal Code to encompass ‘any advantage and is not limited to property’.[32] Similar to American law, Australian corporate liability extends to situations where the benefit was necessary, the value of the benefit was minimal and/or the person who received the benefit was not the public official intended to be influenced by the bribe.[33] For example in the case of the Elomar brothers, the NSW Supreme Court held that a single payment of US$1 million was ‘significant’ because ‘it may have been, in effect, a single payment but it was a substantial one which was made after serious deliberation’.[34] In addition, corporations are also liable under Australian law where they ‘cause’ another person to offer, promise or provide the benefit.[35] Consequently, corporations may be liable even if a third party committed the corrupt conduct overseas, so long as that conduct was caused by corporate behaviour that occurred in Australia.[36]

C The Business Purpose Test

Under both American and Australian anti-bribery law, the scope of a corporation’s liability is restricted to transactions or payments that have some nexus to a commercial enterprise.[37] A corporation may be liable for foreign bribery in both jurisdictions whether or not the business advantage was in fact obtained or retained.[38] For example, recent Australian case law demonstrates that a corporation will still remain liable even if they were never awarded the benefit that they aimed to attain through the bribery and even if there is no evidence that the money remitted to the foreign country was actually paid to the foreign official.[39] Corporate liability under this test is potentially extensive in both jurisdictions as it can include payments or exchanges made to secure business advantages, such as reducing a corporation’s taxes, avoiding customs duties and extending contracts.[40] On the other hand, it should be noted that the business purpose test could also act to restrict corporate liability where the advantage is ‘public’ or ‘non-commercial’ or ‘the intended advantage is so minimal as to be incapable of constituting the obtainment or retention of a business advantage’.[41]

D Intent to Influence

The mental element of anti-bribery offences in America and Australia are similar to the extent that they require a specific intent to influence a foreign official in the exercise of their official duties.[42] However, American law also requires the bribe to be done ‘corruptly’.[43] Although a specific intent to violate the statute is not required, a corporation will not be liable under the FCPA unless the act is ‘done voluntarily and intentionally, and with a bad purpose of accomplishing either an unlawful end or result, or a lawful end or result by some unlawful method or means’.[44] Consequently, extortion may provide a defence to limit corporate liability for foreign bribery under the FCPA where there is an absence of corrupt intent.[45] In addition, American case law indicates that corporations may not be liable for friendship and good will gifts where the element of corrupt intent or the quid pro quo arrangement is lacking and the gratuity is not linked to a specific official act.[46]

IV Affirmative Defences and Exceptions

The scope of a corporation’s liability for foreign bribery is restricted by affirmative defences and exceptions to the Criminal Code and the FCPA.

A Lawful Under Written Laws

Under both American and Australian law, corporations are not liable for offering, promising or providing a benefit that is lawful under the written law of the foreign official’s country.[47] However, corporations remain liable in both jurisdictions if the benefit is not lawful under the written law but merely constitutes a customary practice.[48] The Criminal Code is more detailed than the FCPA as it expressly states eleven scenarios where a corporation would not be held liable, such as, where an employee of the corporation offered, promised or provided a benefit to ‘an employee or official of a foreign government body’ and the conduct occurred ‘wholly in the place where the central administration of the body is located’ and a written law in force at that place permitted the provision of that benefit.[49] Nevertheless, this defence is limited in both jurisdictions because countries rarely expressly permit bribery.[50] The defence was raised in the largest anti-bribery case in Australian history, which involved payments by the Australian Wheat Board (AWB) of AU$221.7 million to the Iraqi government in exchange for lucrative wheat contracts.[51] Although the payments were in direct contravention of UN sanctions and Australian law, the AWB was not subject to criminal prosecution partly because the payments would not have constituted an offence against Iraqi law if the payments had occurred wholly in Iraq.[52]This defence may also have specific importance in cases ‘where domestic laws require or permit bidders for local contracts to fund local investment as a quid pro quo for winning a tender’.[53]

B Bona Fide Expenditure

Unlike Australian law, the FCPA contains an affirmative defence for corporations and individuals where ‘the payment, gift, offer, or promise of anything of value that was made, was a reasonable and bona fide expenditure, such as travel and lodging expenses, incurred by or on behalf of a foreign official’ and ‘was directly related to the promotion, demonstration, or explanation of products or services; or the execution or performance of a contract with a foreign government or agency thereof’.[54] The key element of this provision is the reasonableness of the expenditure such that corporations will often be liable for conduct that does not resemble a routine business trip. For example, Lucent Technologies was fined US$1 million for, among other things, mischaracterising the provision of trips to Chinese government officials as ‘factory inspections’ or ‘training’ when the trips actually typically involved 14 days of sightseeing in places such as Disneyland and Universal Studios.[55]

C Facilitating Payments

Both American and Australian law provides that corporations will not be liable for facilitating payments. Under the Criminal Code, a corporation will not be guilty of a bribery offence if the ‘conduct was engaged in for the sole or dominant purpose of expediting or securing performance of a routine government action of a minor nature’, the benefit was minor and a record of the conduct was made and maintained or the records were destroyed in a manner that could not be prevented or the prosecution occurred more than seven years after the conduct.[56] Similarly, the FCPA excludes corporate liability for a ‘facilitating or expediting payment ... to expedite or to secure the performance of a routine governmental action’.[57] Corporations remain liable for discretionary payments in both jurisdictions as ‘routine governmental action’ is defined as an action ‘ordinarily and commonly performed’ by a foreign official and excludes any decision ‘to award new business’ or continue business with a particular person.[58] The consistency in the laws of both jurisdictions in this area stems from the fact that the Australian legislature intended the phrase ‘routine governmental action’ to largely reflect the definition in the FCPA in order to ensure that ‘Australian legislation be on a par with US legislation’.[59] Nevertheless, in practice, the Australian government considers facilitation payments to be a business risk and advocates that corporations should make every effort to resist these payments.[60]

V Corporate Liability for Bribes by Employees

In theory, American and Australian laws substantially differ in their treatment of corporate liability for the conduct of employees. However, in practice, the US Attorney’s Manual adopts a similar approach to the Australian Criminal Code.

Under American law, the principle of respondeat superior dictates that a corporation can be held criminally or civilly liable for the wrongful conduct of its employees committed during the course of their employment.[61] In order to be criminally liable, the employee should have committed the crime in the scope of their employment to benefit the corporation.[62] It is often not difficult for the prosecution to discharge its burden of proving the corporation’s culpability because the scope of a corporation’s liability is not limited to employees of certain seniority and corporations remain liable even if the employee’s act contravened a policy of the corporation. [63] In addition, corporations remain liable for the acts of their employees even if the firm directed the employee not to commit the offence, adopted and maintained an effective compliance program designed to prevent and detect crimes, self-reported any detected wrongdoing and fully cooperated with federal authorities’ efforts to investigate wrongdoing.[64] Therefore, traditional strict respondeat superior corporate criminal liability discourages corporations from implementing and monitoring an effective compliance program, self-reporting and co-operating because they will not be afforded any legal benefits for doing so and will in fact increase their risk of being found criminally liable.[65] Due to the breadth of these corporate liability principles, prosecutors are provided significant enforcement discretion.[66] However, federal prosecutors do not follow strict respondeat superior principles and, in practice, corporations are not held strictly liable for the crimes of their employees. The Department of Justice directs prosecutors to consider pretrial diversion agreements, namely deferred prosecution or non-prosecution agreements, in order to provide leniency for corporations that maintain effective compliance programs, self-report and cooperate.[67] Therefore, corporations that fully cooperate with federal authorities and self-report the crime prior to any threat of detection are rarely prosecuted.[68]

Under Australian law, corporations will not be liable for foreign bribery committed by their employees unless the corporation can be attributed with both the physical and mental elements of the offence. For a corporation to be attributed with the physical element, the employee’s conduct should have been committed in the actual or apparent scope of their employment.[69] A corporation will be attributed with the mental element if the corporation ‘expressly, tacitly or impliedly authorized or permitted the commission of the offence’.[70] Consequently, a corporation will be liable where it can be proved that the board of directors or ‘a high managerial agent’ either engaged in the relevant conduct or authorized or permitted the commission of the offence.[71] An employee’s conduct will also fall within the scope of a corporation’s liability where there was a demonstrated ‘corporate culture’ within the corporation of ‘looking the other way’ or ‘encouraging bribery’ in order to facilitate business.[72] Therefore, corporations will face liability if the prosecution can prove a corporate culture existed that ‘directed, encouraged, tolerated or led to non-compliance with the relevant provision’ or the corporation ‘failed to create and maintain a corporate culture that required compliance’.[73] Corporate culture is defined in the statute as ‘an attitude, policy, rule, course of conduct or practice existing within the body corporate generally or in the part of the body corporate in which the relevant activities take place’.[74] Ultimately, Australian law provides that corporations may be liable under federal law ‘for failing to prevent and detect official bribery in its ranks’.[75] However, the precise practical impact of these provisions on corporate liability is unclear. The prosecution of Securency and Note Printing Australia could shed some light on liability in this area once the matter is resolved and the suppression orders imposed by the Victorian County and Supreme Courts are lifted. In the meantime, corporations can increase their chances of avoiding liability under this statute if they implement an effective compliance program that is appropriately monitored.[76]

VI Accounting Provisions

The accounting provisions of the FCPA and the Criminal Code broaden the scope of corporate liability as regulators may indirectly penalize corporations for foreign bribery.

Under American law, the accounting provisions of the FCPA only apply to issuers and do not extend to other private corporations.[77] The scope of an issuer’s liability for foreign bribery extends to failing to maintain books and records which reasonably detail accurately and fairly the transactions and dispositions of the assets of the issuer.[78] The issuer must provide ‘such level of detail and degree of assurance as would satisfy prudent officials in the conduct of their own affairs’.[79] Issuers will also be liable for breach of the accounting provisions if they fail to devise and maintain a system of internal accounting controls to provide reasonable assurances that transactions are recorded with proper management authority, financial statements are prepared in accordance with proper accounting procedures and the issuer maintains accountability for its assets.[80] An issuer will be civilly accountable for inaccurate or inadequate records even if they do not know the records are inaccurate as there is no intent or materiality requirement for this provision.[81] Therefore, issuers could be strictly civilly liable for foreign bribery committed by their employees where the purpose of the payment is mischaracterized in the books or the illegal or improper transaction is not accurately recorded.[82] However, knowledge is required for issuers to be criminally liable such that issuers must knowingly fail to implement a system of internal accounting controls or knowingly falsify their books and records.[83] Therefore, if the issuer knows of an employee’s falsification of the books to mischaracterize or fail to record a foreign bribe, even if the bribe does not involve a ‘foreign official’, the issuer can be both criminally and civilly liable.

In Australia, false accounting provisions were introduced to the Criminal Code in 2016 and apply to the same corporations that are covered by the statute. Part 10.9 of the Criminal Code provides two new offences of false dealing with accounting documents, which make it an offence if a corporation or individual intentionally or recklessly facilitates, conceals or disguises illegitimate payments by making, altering or destroying accounting documents.[84] An accounting document is broadly defined under the statute.[85] The scope of a corporation’s liability for foreign bribery extends to manipulating records with the intention of facilitating, concealing or disguising the giving or receiving of a benefit that is not legitimately due, or a loss not legitimately incurred, or being reckless about doing so.[86] Recklessness involves awareness of a substantial risk that the conduct would result in the outcome.[87] Prior to the creation of this offence, corporations were only liable under the more general record-keeping obligations and forgery laws outlined in the Australian income tax laws, corporations laws and the Criminal Code. [88] It should be noted that the conduct that forms the basis of the false accounting offences might also affect the attribution of mens rea elements to a corporation under the corporate culture provisions of the Criminal Code.[89]

VII Conclusion

Although the details of the foreign bribery laws differ between the two jurisdictions, the scope of a corporation’s liability for foreign bribery is largely similar under American and Australian law. In both jurisdictions, the offence involves three crucial elements including the provision of a benefit or something of value, the need for a business purpose and the intent to influence a foreign official. Both American and Australian law also provide similar affirmative defences and exceptions to the offence, namely where the conduct is lawful under the written laws of the foreign official’s country and the conduct constitutes a facilitating payment. Moreover, both jurisdictions extend the scope of a corporation’s liability to encompass corrupt conduct committed by its employees and, in practice, corporations that implement an effective compliance program may be able to avoid or, at the very least, lessen their liability for bribes committed by their employees. Finally, the scope of a corporation’s liability for foreign bribery under both American and Australian law is sufficiently broad to incorporate mischaracterizing a bribe in their books or failing to maintain accurate books that record the bribe. Ultimately, companies that engage in foreign bribery simultaneously ‘undermine their own long-term interests and the best interests of their investors’.[90]

[1] Stanford Law School, Foreign Corrupt Practices Act Clearinghouse: Statistics & Analytics (29 November 2017) <http://fcpa.stanford.edu/chart-penalties.html>. [2] See: Jeremy Berke, ‘After Trump took office, he told Tillerson that American businesses were being unfairly penalised by laws prohibiting them from bribing foreign officials’, Business Insider Australia (online), 7 October 2017 <https://www.businessinsider.com.au/trump-tillersonamerican-businesses-bribing-foreign-officials-2017-10?r=US&IR=T>; Dexter Filkins, ‘Rex Tillerson at the Breaking Point: Will Donald Trump let the Secretary of State do his job?’, The New Yorker (online), 16 October 2017 <https://www.newyorker.com/magazine/2017/10/16/rex-tillerson-at-the-breaking-point>; Arthur Kutoroff and Steven Witzel, ‘FCPA Standstill’, The New York Law Journal (online), 6 September 2017 <https://www.law.com/newyorklawjournal/almID/1202797372471/?slreturn=20171124163605>. [3] Nassim Khadem, ‘Australia a “soft touch” for foreign bribery, inquiry told’, The Sydney Morning Herald (online), 7 August 2017 <http://www.smh.com.au/business/the-economy/australia-a-soft-touch-for-foreign-bribery-inquiry-told-20170807-gxqspv.html>. [4] Ibid. [5] See: James Massola, Nick MacKenzie, Richard Baker, ‘AFP given $15 million boost to tackle corporate foreign bribery’, The Sydney Morning Herald (online), 23 April 2016 < http://www.smh.com.au/federal-politics/political-news/afp-given-15-million-boost-to-tackle-corporate-foreign-bribery-20160422-gocwt0.html>; Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017 (Cth). [6] Organisation for Economic Cooperation and Development (OECD), CleanGovBiz: Integrity in Practice (2014) <https://www.oecd.org/cleangovbiz/49693613.pdf>. [7] David Hume and Geoff Healy, ‘Bribery and Corruption: Key Issues for Australian Companies Operating Overseas’ (2011) 34(3) UNSW Law Journal 747, 749. [8] 15 USC §§ 78dd-1, 78dd-2, 78dd-3 (2012). [9] Ibid §§ 78dd-1(a), 78dd-2(a), 78dd-3(a); see also: Criminal Division of the U.S. Department of Justice and the Enforcement Division of the U.S. Securities and Exchange Commission, A Resource Guide to the US Foreign Corrupt Practices Act (2012) 10-11. [10] Ibid. [11] Ibid. [12] US Securities and Exchange Commission, ‘SEC Charges Siemens AG for Engaging in Worldwide Bribery’ (Press Release, 15 December 2008) < https://www.sec.gov/news/press/2008/2008-294.htm>. [13] Criminal Code Act 1995 (Cth) s 70.5(1). [14] Ibid. [15] Paul Latimer, ‘Anti-bribery laws – compliance issues in Australia’ (2017) 24(1) Journal of Financial Crime 4, 11. [16] See for example: DPP v Brady [2015] VSC 246; R v Ellery [2012] VSC 349. [17] R v Jousif; R v I Elomar; R v M Elomar [2017] NSWSC 1299 (27 September 2017). [18] 15 USC § 78dd-1(a). [19] Criminal Code Act 1995 (Cth) div 70. [20] 15 USC § 78ff(a). [21] Criminal Code Act 1995 (Cth) s 70.2(5); Crimes Act 1914 (Cth) s4AA. [22] 15 USC § 78dd-1(1)(A). [23] See for example: Kayla Feld, ‘Controlling the Prosecution of Bribery: Applying Corporate Law Principles to Define a “Foreign Official” in the Foreign Corrupt Practices Act’ (2013) 88(1) Washington Law Review 245, 252. [24] Criminal Code Act 1995 (Cth) s 70.1. [25] 15 USC § 78dd-2(h)(2)(A). [26] United States v Esquenazi 752 F 3d 912 (11th Cir, 2014). [27] US Securities and Exchange Commission, ‘SEC Charges Diebold with FCPA Violations’ (Press Release, 22 October 2013) <https://www.sec.gov/news/press-release/2013-225>. [28] See: SEC v. UTStarcom Inc (ND Cal, No CV 09-6094, 31 December 2009); SEC v Siemens Aktiengesellschaft (DDC, No 08-02167, 12 December 2008) slip op 23-5. [29] Shinjini Chatterjee, ‘Dangerous Liaisons: Criminalization of Relationship Hires under the Foreign Corrupt Practices Act’ (2015) 163 University of Pennsylvania Law Review 1771, 1785. [30] Ibid; See also: Ned Levin, Emily Glazer and Christopher Matthews, ‘In J.P. Morgan Emails, a Tale of China and Connections’, Wall Street Journal (online), 6 February 2015 < https://www.wsj.com/articles/in-j-p-morgan-emails-a-tale-of-china-and-connections-1423241289>. [31] 15 USC §§ 78dd-1(a)(3), (f)(3), 78dd-2(a)(3), (f)(3), 78dd-3(a)(3), (f)(3). [32] Criminal Code Act 1995 (Cth) s 70.1. [33] Ibid s 70.2(1)(c). [34] R v Jousif; R v I Elomar; R v M Elomar [2017] NSWSC 1299 (27 September 2017) [253]-[254]. [35] Ibid ss 70.2(1)(a)-(b). [36] Hume and Healy, above n 7, 753. [37] 15 USC §§ 78dd-1(a), 78dd-2(a), 78dd-3(a); Criminal Code Act 1995 (Cth) s 70.2(1)(c). [38] Criminal Code Act 1995 (Cth) s 70.2(1A)(b); S. Rep. 95-114, 10 (1977). [39] See: R v Jousif; R v I Elomar; R v M Elomar [2017] NSWSC 1299 (27 September 2017). [40] See for example: United States v Kay, 359 F 3d 738, 740, 754-56 (5th Cir, 2004); Criminal Code Act 1995 (Cth) ss 70.1, 70.2(1)(c)(ii). [41] Hume and Healy, above n 7, 754. [42] Criminal Code Act 1995 (Cth) s 70.2(1)(c); 15 USC §§ 78dd-1(a)(1)-(2), 78dd-2(a)(1)-(2), 78dd-3(a)(1)-(2). [43] 15 USC §§ 78dd-1(a), 78dd-2(a), 78dd-3(a). [44] See: Stichting Ter Behartiging Van de Belangen Van Oudaandeelhouders in Het Kapitaal Van Saybolt International B.V. v Schreiber 327 F 3d 173, 182 (2nd Cir, 2003); United States v Liebo 923 F 2d 1308, 1312 (8th Cir, 1991); see also: 18 USC § 201(b). [45] S. Rep. 95-114, 10-11 (1977). [46] See: United States v Arthur 544 F 2d 730, 734 (4th Cir, 1976); United States v Sun-Diamond Growers of California 526 US 398 (1999); United States v Kohring 637 F 3d 895 (9th Cir, 2011); United States v McNair 605 F 3d 1152 (11th Cir, 2010). [47] Criminal Code Act 1995 (Cth) s 70.3; 15 USC §§ 78dd-1(c)(1), 78dd-2(c)(1), 78dd-3(c)(1). [48] See: Hume and Healy, above n 7, 758; Criminal Code Act 1995 (Cth) s 70.2(2). [49] Criminal Code Act 1995 (Cth) s 70.3. [50] See: United States v Kozeny 582 F Supp 2d 535 (SDNY, 2008); Feld, above n 23, 248. [51] See: Latimer, above n 15, 11, 14. [52] Ibid. [53] Hume and Healy, above n 7, 758. [54] 15 USC §§ 78dd-1(c)(2), 78dd-2(c)(2), 78dd-3(c)(2). [55] See: US Department of Justice, ‘Lucent Technologies Inc. Agrees to Pay $1 Million Fine to Resolve FCPA Allegations’ (Press Release, 21 December 2007) <https://www.justice.gov/archive/opa/pr/2007/December/07_crm_1028.html>. [56] Criminal Code Act 1995 (Cth) s 70.4(1). [57] 15 USC §§ 78dd-1(b), 78dd-2(b), 78dd-3(b). [58] Ibid §§78dd-l(f)(3)(A)-(B); Criminal Code Act 1995 (Cth) ss 70.4(2)(c)-(d). [59] Explanatory Memorandum, Criminal Code Amendment (Bribery Foreign Public Officials) Bill 1999 (Cth) 23 [49]-[50]. [60] See: Hume and Healy, above n 7, 758. [61] See for example: United States v Hilton Hotels Corp 467 F 2d 1000, 1007 (9th Cir, 1972). [62] Ibid. [63] Ibid. [64] See for example: Ibid; United States v Twentieth Century Fox Film Corporation 882 F 2d 656, 660-1 (2nd Cir, 1989). [65] See for example: Jennifer Arlen and Marcel Kahan, ‘Corporate Governance Regulation Through Nonprosecution’ 84 The University of Chicago Law Review 323, 331. [66] Hume and Healy, above n 7, 760. [67] See: Arlen and Kahan, above n 65, 332; US Attorney’s Manual, Principles of Federal Prosecution of Business Organisations (2015) § 9-28.300; see also: Joel Schectman, ‘U.S. expands leniency for companies that disclose foreign bribery’, Thomson Reuters (online), 30 November 2017<https://www.reuters.com/article/us-usa-doj-bribery/u-s-expands-leniency-for-companies-that-disclose-foreign-bribery-idUSKBN1DT2F1>. [68] Ibid. [69] Criminal Code Act 1995 (Cth) s 12.2. [70] Ibid s 12.3(1). [71] Ibid ss 12.3(2)(a)-(b), (3). [72] Ibid ss 12.3(2)(c)-(d), (6); see also: Sydney Fields, ‘Statutory Tools for Enhancing Multinational Corporation Compliance with Anti-bribery Laws: Recommended Changes to Australia’s Foreign Bribery Offence’ (2017) 49(2) The George Washington Law Review 441, 447. [73] Criminal Code Act 1995 (Cth) ss 12.3(2)(c)-(d), (6). [74] Ibid s 12.3(6). [75] Kelly Griffiths, ‘Criminalising Bribery in a Corporate World’ (2016) 27(3) Current Issues in Criminal Justice 251, 260. [76] See Hume and Healy, above n 7, 760. [77] Securities and Exchange Act of 1934, 15 USC §§ 12, 15(d). [78] 15 USC § 78m(b)(2)(A). [79] Ibid § 78m(b)(7). [80] Ibid § 78m(b)(2)(B). [81] Ibid § 78m(b)(5). [82] Ibid § 78m(b)(2)(A). [83] Ibid § 78m(b)(5). [84] Criminal Code Act 1995 (Cth) ss 490.1(1), 490.2(1). [85] See: Ibid Dictionary pt 10.9. [86] Ibid ss 490.1(1), 490.2(1). [87] Ibid s 5.4. [88] Income Tax Assessment Act 1936 (Cth) s 262A; Corporations Act 2001 (Cth) s 286; Criminal Code Act 1995 (Cth) Pt 7.7. [89] See: Hume and Healy, above n 7, 765. [90] Criminal Division of the U.S. Department of Justice and the Enforcement Division of the U.S. Securities and Exchange Commission, above n 9, 3.

REFERENCE LIST

A Articles/Books/Reports

Arlen, Jennifer and Marcel Kahan, ‘Corporate Governance Regulation Through Nonprosecution’ 84 The University of Chicago Law Review 323

Berke, Jeremy, ‘After Trump took office, he told Tillerson that American businesses were being unfairly penalised by laws prohibiting them from bribing foreign officials’, Business Insider Australia (online), 7 October 2017 <https://www.businessinsider.com.au/trump-tillersonamerican-businesses-bribing-foreign-officials-2017-10?r=US&IR=T>

Chatterjee, Shinjini, ‘Dangerous Liaisons: Criminalization of Relationship Hires under the Foreign Corrupt Practices Act’ (2015) 163 University of Pennsylvania Law Review 1771

Earle, Beverley and Anita Cava, ‘The “Princelings” and the Banks: When Does a Legitimate Business Practice Become Criminal Corruption in Violation of the Foreign Corrupt Practices Act?’ (2017) 37(1) Northwestern Journal of International Law & Business 107

Feld, Kayla, ‘Controlling the Prosecution of Bribery: Applying Corporate Law Principles to Define a “Foreign Official” in the Foreign Corrupt Practices Act’ (2013) 88(1) Washington Law Review 245

Fields, Sydney, ‘Statutory Tools for Enhancing Multinational Corporation Compliance with Anti-bribery Laws: Recommended Changes to Australia’s Foreign Bribery Offence’ (2017) 49(2) The George Washington Law Review 441

Filkins, Dexter, ‘Rex Tillerson at the Breaking Point: Will Donald Trump let the Secretary of State do his job?’, The New Yorker (online), 16 October 2017 <https://www.newyorker.com/magazine/2017/10/16/rex-tillerson-at-the-breaking-point>

Griffiths, Kelly, ‘Criminalising Bribery in a Corporate World’ (2016) 27(3) Current Issues in Criminal Justice 251

Hume, David and Geoff Healy, ‘Bribery and Corruption: Key Issues for Australian Companies Operating Overseas’ (2011) 34(3) UNSW Law Journal 747

Khadem, Nassim, ‘Australia a “soft touch” for foreign bribery, inquiry told’, The Sydney Morning Herald (online), 7 August 2017 <http://www.smh.com.au/business/the-economy/australia-a-soft-touch-for-foreign-bribery-inquiry-told-20170807-gxqspv.html>

Kutoroff, Arthur and Steven Witzel, ‘FCPA Standstill’, The New York Law Journal (online), 6 September 2017 <https://www.law.com/newyorklawjournal/almID/1202797372471/?slreturn=20171124163605>

Latimer, Paul, ‘Anti-bribery laws – compliance issues in Australia’ (2017) 24(1) Journal of Financial Crime 4

Levin, Ned, Glazer, Emily and Christopher Matthews, ‘In J.P. Morgan Emails, a Tale of China and Connections’, Wall Street Journal (online), 6 February 2015 <https://www.wsj.com/articles/in-j-p-morgan-emails-a-tale-of-china-and-connections-1423241289>

Massola, James, MacKenzie, Nick and Richard Baker, ‘AFP given $15 million boost to tackle corporate foreign bribery’, The Sydney Morning Herald (online), 23 April 2016 <http://www.smh.com.au/federal-politics/political-news/afp-given-15-million-boost-to-tackle-corporate-foreign-bribery-20160422-gocwt0.html>

Schectman, Joel, ‘U.S. expands leniency for companies that disclose foreign bribery’, Thomson Reuters (online), 30 November 2017 <https://www.reuters.com/article/us-usa-doj-bribery/u-s-expands-leniency-for-companies-that-disclose-foreign-bribery-idUSKBN1DT2F1>

Smith, Lena, ‘Is Strict Liability the Answer in the Battle against Foreign Corporate Bribery?’ (2014) 79(4) Brooklyn Law Review 1801

B Cases

DPP v Brady [2015] VSC 246

R v Ellery [2012] VSC 349

R v Jousif; R v I Elomar; R v M Elomar [2017] NSWSC 1299 (27 September 2017)

SEC v Siemens Aktiengesellschaft (DDC, No 08-02167, 12 December 2008)

SEC v. UTStarcom Inc (ND Cal, No CV 09-6094, 31 December 2009)

Stichting Ter Behartiging Van de Belangen Van Oudaandeelhouders in Het Kapitaal Van Saybolt International B.V. v Schreiber 327 F 3d 173 (2nd Cir, 2003)

United States v Arthur 544 F 2d 730 (4th Cir, 1976)

United States v Esquenazi 752 F 3d 912 (11th Cir, 2014)

United States v Hilton Hotels Corp 467 F 2d 1000 (9th Cir, 1972)

United States v Kay, 359 F 3d 738 (5th Cir, 2004)

United States v Kohring 637 F 3d 895 (9th Cir, 2011)

United States v Kozeny 582 F Supp 2d 535 (SDNY, 2008)

United States v Liebo 923 F 2d 1308 (8th Cir, 1991)

United States v McNair 605 F 3d 1152 (11th Cir, 2010)

United States v Sun-Diamond Growers of California 526 US 398 (1999)

United States v Twentieth Century Fox Film Corporation 882 F 2d 656 (2nd Cir, 1989)

C Legislation

Corporations Act 2001 (Cth)

Crimes Act 1914 (Cth)

Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017 (Cth)

Criminal Code Act 1995 (Cth)

Foreign Corrupt Practices Act of 1977, 15 USC

Income Tax Assessment Act 1936 (Cth)

Securities and Exchange Act of 1934, 15 USC

D Other

Criminal Division of the U.S. Department of Justice and the Enforcement Division of the U.S. Securities and Exchange Commission, A Resource Guide to the US Foreign Corrupt Practices Act (2012)

Explanatory Memorandum, Criminal Code Amendment (Bribery Foreign Public Officials) Bill 1999 (Cth)

Organisation for Economic Cooperation and Development (OECD), CleanGovBiz: Integrity in Practice (2014) <https://www.oecd.org/cleangovbiz/49693613.pdf>

S. Rep. 95-114 (1977)

Stanford Law School, Foreign Corrupt Practices Act Clearinghouse: Statistics & Analytics (29 November 2017) <http://fcpa.stanford.edu/chart-penalties.html>

US Attorney’s Manual, Principles of Federal Prosecution of Business Organisations (2015)

US Department of Justice, ‘Lucent Technologies Inc. Agrees to Pay $1 Million Fine to Resolve FCPA Allegations’ (Press Release, 21 December 2007) <https://www.justice.gov/archive/opa/pr/2007/December/07_crm_1028.html >

US Securities and Exchange Commission, ‘SEC Charges Diebold with FCPA Violations’ (Press Release, 22 October 2013) < https://www.sec.gov/news/press-release/2013-225>

US Securities and Exchange Commission, ‘SEC Charges Siemens AG for Engaging in Worldwide Bribery’ (Press Release, 15 December 2008) <https://www.sec.gov/news/press/2008/2008-294.htm>