Still 'Insufficient or Irrelevant': Australia's Foreign Bribery Corporate Whistleblowing Regulation

Australia’s enforcement of its foreign bribery regime in general has been the subject of substantial criticism in recent years. In 2012 the Organisation for Economic Co-operation and Development’s (‘OECD’) Working Group on Bribery issued its review of Australia’s implementation of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (‘Convention on Combating Bribery ’). The Phase 3 Report criticised Australia’s performance, noting the Working Group had ‘serious concerns that overall enforcement of the foreign bribery offence to date has been extremely low’. In 2015, following up on its earlier report, the OECD noted that Australia still had only one prosecution underway in relation to the foreign bribery provisions and that this matter had been on foot since before the Phase 3 Report . The OECD Working Group identified a range of areas for improvement, including the importance of strengthened protection for whistleblowers in both the public and private sectors. The OECD Working Group described Australia’s existing private sector whistleblowing laws as ‘insufficient or irrelevant to foreign bribery’.

The OECD’s 2015 Follow-up Report noted the steps taken to implement a more supportive whistleblowing system, including in particular the passage of public sector whistleblowing legislation, the Public Interest Disclosure Act 2013 (Cth). However, the Follow-up Report pointed out that the original Phase 3 Report recommended additional protection measures for private as well as public sector whistleblowers. This part of the recommendations has not been addressed. Submissions to the Senate Economics References Committee’s 2015–16 Foreign Bribery Inquiry support the argument that Australia’s foreign bribery private sector whistleblower framework remains inadequate. A key continuing problem is the lack of a specific link between the foreign bribery offence and the whistleblower protections in the Corporations Act 2001 (Cth) (‘Corporations Act’), rendering those protections largely irrelevant to foreign bribery whistleblowing.

The scale of the international bribery problem is increasingly well-documented. The OECD’s 2014 analysis of the 427 concluded foreign bribery cases since the entry into force in 1999 of the Convention on Combating Bribery reported that bribes averaged 10.9 per cent of the total transaction value, clearly demonstrating the gross economic and social distortions created by foreign bribery. Australia’s lack of attention to foreign bribery corporate or ‘private sector’ whistleblowing seems anomalous and ultimately unsustainable. This article argues for the importance of corporate whistleblowing as an anti-bribery tool from practical and theoretical perspectives, identifies a range of shortcomings within the Australian regulatory system, and outlines the weight of international evidence pointing to the need for adequate corporate whistleblowing provisions in relation to foreign bribery. In light of these points, this article argues for some achievable amendments to the existing regulatory structure, pending more ambitious reform of private sector whistleblowing in Australia.