Criminalising Corporate Failures to Prevent Foreign Bribery by Non-Controlled Associates - A Net Cast Too Wide

The Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 (Cth) introduces amendments to the Criminal Code Act 1995 (Cth) designed to enhance Australia's response to foreign bribery. This includes the creation of a new corporate offence of "failing to prevent" foreign bribery by commercial associates for the profit or gain of a corporation, which gives rise to absolute criminal liability subject to an "adequate procedures" defence. This article examines the scope of the proposed offence and its application to the conduct of non-controlled associates. It argues that the proposed offence suffers from overreach that will lead to unfair and ineffective outcomes, and the inefficient allocation of regulatory compliance burden. It concludes by considering changes to the proposed offence to ensure that the application of absolute criminal liability is limited to the conduct of a company's associates that is within the company's control and ability to prevent.