SKP Group
17 November 2015
Regulators prosecuting corrupt intent

In many circumstances, efforts by regulators towards anti-corruption are noticed to be against the interest of business. Regulators across the globe are attempting to define the ethical conduct expected by corporations, providing adequate practical approaches towards ensuring compliance. Furthermore, regulators express their expectations from corporations from time to time, on the adoption of compliance in spirit than just words represented in the regulation.
 
The recent effort of the Australian Parliament’s House of Representatives passing the Crimes Legislation Amendment (Powers, Offences and Other Measures) Bill 2015, also signifies the same. The regulators in the proposed amendment have stated the following as part of the explanatory memorandum:
Schedule 2 will amend the Criminal Code to clarify the operation of the offence of bribing a foreign public official in Division 70.2. The amendment clarifies that proof of an intention to influence a particular foreign official is not required to establish the offence. Clarifying the offence will ensure that a defendant in a foreign bribery matter is not able to argue that prosecution needs to establish an intention to bribe a particular foreign official.
For example, if a third party intermediary pays a bribe on behalf of a company and the company’s representatives are aware of such a possibility, then the company may become liable, irrespective of specific knowledge of the amount of bribe or the person to whom it was paid.
 
With increased rallying by the OECD for its signatory countries to make anti-bribery and transparency commitments, Australia appeared on the radar with a report indicating that it is failing to tackle bribery by multinational corporations in January 2014. The above amendment seems to be an effort towards making progress on the OECD commitments by Australia.
 
Instances of a third party intermediary being used for investigations are becoming prominent across the globe. With limitations of internal investigations, companies are challenged with the inability to determine the amount of payment and the public official to whom such payment was made. The lack of specific evidence was also claimed as a defence by many companies in the past across the globe. Now, regulators are becoming explicit in their expectations of the principles more often.
 
While the US Foreign Corrupt Practices Act, 1977, has been consistent in considering knowledge of potential payment as an intent in a number of cases (including Congressman William J Jefferson’s case), Australia’s proposed amendment to Crimes Legislation refers to the same.
 
In the Indian context, the Prevention of Bribery of Foreign Public Officials and Officials of Public International Organisations Bill, 2011, lapsed in May 2014 and is expected to be reintroduced. The proposed bill contained specific provisions that criminalises the bribe-giver and refers to bribery as “undue advantage”, which includes habitually accepting or agreeing to accept any valuable thing with or without adequate consideration. While the regulation has not come into force, the effort of the Indian regulators also appears to focus on corrupt intent. With increased focus on governance and transparency by the central government, we believe that the implementation and enforcement of the regulation is around the corner.

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