David Luijerink, KPMG Forensic Partner says under the Act – commercial organisations can be found guilty of an offence if they cannot prove they had adequate procedures in place to prevent people from committing bribery. This applies not only to activities of their employees but also to third party associates such as business partners, agents or contractors.
"It is important to note that the Act also covers the actions of non-UK nationals or residents. This means that an Australian business that transacts with the UK could very well find itself facing charges over illegal conduct by a non-British employee or a contractor, or for failing to prevent a third party supplier from paying or receiving a bribe, even if the misconduct took place in another country," says Mr Luijerink.
The Act imposes penalties of up to 10 years imprisonment for individuals and potentially unlimited fines for companies.
"Businesses need to cultivate a deeper culture of compliance and be able to demonstrate that they have sufficient risk management practices embedded in the business to mitigate bribery risks. Citing corporate ignorance in this instance will offer no protection from the long reach of the Act," says Mr Luijerink.
The recently released KPMG Global Anti-Bribery and Corruption Survey 2011 revealed that a third of respondents did not assess the risk of bribery or corruption, an essential element of understanding these types of threats and upon which appropriate management actions can be developed. Further, 40 percent with written anti-bribery and corruption policies did not distribute them to key third parties such as agents or suppliers, and 60 percent did not require third party representatives to participate in anti-bribery compliance training.
The survey also found that despite the greater awareness for the need for well-developed anti-bribery and corruption compliance programs, many of these programs still lacked sufficient depth and breadth to effectively mitigate anti-bribery and corruption risk around the world.
"Although the survey participants were from the UK and US the issues identified in the survey are also relevant to Australian businesses with international operations given the Act’s broad jurisdictional reach," says Mr Luijerink.
"The potential costs of involvement in bribery and corruption are not limited to economic costs but also extend to reputational harm and businesses need to weigh up whether not complying with the Act is a risk it can afford."