UC Irvine Journal of International, Transnational, and Comparative

Law

Volume 4 Symposium: Transnational Ordering Article 4

of Criminal Justice

8-29-2019

Transnational Criminal Law or the Transnational Legal Ordering of

Corruption?
Radha Ivory
TC Beirne School of Law

Follow this and additional works at: https://scholarship.law.uci.edu/ucijil

Part of the Criminal Law Commons, and the International Law Commons

Recommended Citation
Ivory, Radha (2019) "Transnational Criminal Law or the Transnational Legal Ordering of Corruption?," UC
Irvine Journal of International, Transnational, and Comparative Law: Vol. 4, 26.
Available at: https://scholarship.law.uci.edu/ucijil/vol4/iss1/4

This Article is brought to you for free and open access by UCI Law Scholarly Commons. It has been accepted for
inclusion in UC Irvine Journal of International, Transnational, and Comparative Law by an authorized editor of UCI Law
Scholarly Commons.


Transnational Criminal Law or the

Transnational Legal Ordering of
Corruption?

Theorizing Australian Corporate Foreign

Bribery Reforms

Dr. Radha Ivory*

To date, “transnational criminal law” has been the dominant

paradigm for explaining and mapping rules on corruption in the
international legal literature. Transnational criminal law is presented as a
system of law descending from multilateral crime control treaties or a field or
order that emerges through international political processes of regime
formation. Transnational criminal lawyers identify and describe cross-border
legal rules, and seek to evaluate them against liberal norms of democratic
governance and individual civil and political human rights. This Article
details the limits of transnational criminal conceptions of “anticorruption”
through a study of proposed changes to Australian laws on corporate foreign
bribery. Drawing on primary and secondary documentary sources, domestic
and international, it shows that the emerging antipodean rules are only
partially transnational, as that term is understood in transnational criminal
law theory. Likewise, multilateral “suppression conventions” and related
soft laws are but one impetus for the proposed changes to Australian federal
anticorruption legislation. Rather, as the transnational legal ordering
literature suggests, a recursive process appears to be at work between
international organizations and local legislators, as well as transnational
non-state actors, both charities and businesses. This process is marked by


* Senior Lecturer, T.C. Beirne School of Law, University of Queensland, Australia. The research was
conducted in August/September 2018 and updated in December 2018 prior to submission in early
January 2019. My thanks to Gregory Shaffer, Ely Aaronson, Terrence Halliday, Felix Luth, Ross
Grantham, Liz Campbell, and Julia Howell, as well as all the participants in the UCI Workshop on
Transnational Legal Ordering of Criminal Justice, for their very useful comments on earlier drafts of
this article and a related chapter.



[2019] AUSTRALIAN CORPORATE FOREIGN BRIBERY REFORMS 27

moments of borrowing from (former) patrons, the US and the UK.

However, it is also punctuated by themes of modernization, economic
efficiency, and reputation. In addition, Australian anti-corruption activities
may result not just in changes to national criminal law, but also in the
development of “new” – and controversial – techniques of governance.

Introduction....................................................................................................................... 27

I. Two Theories of Transnational Law in Criminal Justice ........................................ 29

II. Comparing the Theories in a Case of Foreign Bribery Reform ........................... 31

A. Approach to the Comparison .......................................................................31

B. Selecting Australia ...........................................................................................32

C. Background to the CCC Bill .........................................................................33

D. Method of Analysis ........................................................................................34

III. TCL and TLO Theory in the Australian Case ...................................................... 36

A. “Transnational Law” and the Proposed Australian Reforms ..................37

1. International Standards and Statements ..............................................37

2. Anglo-American Precedents .................................................................39

3. Australian and Multinational Drivers ..................................................41

4. Theorizing Transnational Law Reforms .............................................42

B. “Criminal Law” and the Proposed Australian Reforms ...........................44

1. An Example of “New Governance”?..................................................45

2. The Prospects and Pitfalls of New Governance ...............................46

3. Theorizing Non-Criminal Law Reforms .............................................49

Conclusion ......................................................................................................................... 50

INTRODUCTION
The bribery of foreign public officials is an inherently transnational
offense. But are the rules against foreign bribery best viewed as “transnational
criminal law?” For international lawyers, concepts of transnational criminal law are
an obvious place to start categorizing supra-state anticorruption controls.1 As most
elaborately theorized by legal academic Neil Boister, “TCL” is “the indirect
suppression by international law through domestic penal law of criminal activities
that have actual or potential trans-boundary effects” or “trans-boundary moral
impacts.”2 TCL is a legal system, field, order, or space comprising state-to-state and
state-to-person obligations with transnational crime as their focus.3 The bribery of
foreign public officials can be seen as an example of TCL, so conceived, due to the


1. Radha Ivory, Beyond Transnational Criminal Law: Anti-Corruption as Global New Governance, 6
LONDON REV. INT’L L. 413, n. 6 (2018) [hereinafter Ivory 2018] (with further references).
2. Neil Boister, “Transnational Criminal Law”? 14 EUR. J. INT’L L. 953, 955 (2003) [hereinafter
Boister 2003]; Neil Boister, The Concept and Nature of Transnational Criminal Law, in ROUTLEDGE
HANDBOOK OF TRANSNATIONAL CRIMINAL LAW 11, 13 (Neil Boister & Robert Currie eds., 2014)
[hereinafter Boister 2014]; Neil Boister, Further Reflections on the Concept of Transnational Criminal Law, 6
TRANSNAT’L LEGAL THEORY 9, 13 (2015) [hereinafter Boister 2015]; NEIL BOISTER, AN
INTRODUCTION TO TRANSNATIONAL CRIMINAL LAW 17 (2nd ed. 2018) [hereinafter BOISTER 2018].
3. See, further, infra Part I.
28 UCI JRNL. OF INT’L, TRANSNATIONAL, & COMP. L. [Vol. 4:26]

multiple nationalities of its protagonists and its underlying matrix of international

and domestic legal standards.4 In addition, the international norm against foreign
bribery is a relatively recent prohibition that would appear to have resulted from the
type of international moral politics that Boister would stress.5
However, as I argue elsewhere,6 there are important discrepancies between
Boister’s conception of transnational criminal law and international anticorruption
standards and practices.7 Supra-state rules against corruption are not only cross-
border or penal in the ways elaborated by transnational criminal lawyers;
international standards and domestic obligations are but one modality for global
corruption control. More overtly sociological approaches to transnational law are a
better fit for the development and patterning of these anticorruption laws. More
regulatory or preventive concepts of crime control may better capture the nature of,
and problems with, their measures. Thus, I proposed Terrence Halliday and
Gregory Shaffer’s transnational legal ordering (hereinafter TLO) theory as a more
effective tool for explaining and critiquing anticorruption law as it emerges between
international institutions, jurisdictions, and non-state organizations.8
Extending that analysis, this Article tests the utility of Boister’s conception,
and of Halliday and Shaffer’s alternative approach, by examining an ongoing case
of corporate foreign bribery reform from Australia. A federation of former British
colonies in the Asia-Pacific, Australia belongs to several international economic
crime initiatives, not least the United Nations Convention against Corruption
(hereinafter UN Convention) and the Convention on Combating Bribery of Foreign
Public Officials in International Business Transactions of the Organisation for
Economic Co-operation and Development (hereinafter OECD Convention).9 To
date, Australia’s federal (Commonwealth) government has implemented these
anticorruption treaties inter alia with an offense against the bribery of foreign public
officials and statutory corporate criminal liability principles.10 These provisions have
been pronounced internationally compliant with duties to hold legal persons liable
for foreign bribery.11 But they have also been questioned for their relative lack of

4. See, further, infra Part II(A).
5. Id.
6. Ivory 2018, supra note 1.
7. See also Sabine Gless, Bird’s-Eye View and Worm’s Eye View: Towards a Defendant-Based Approach
in Transnational Criminal Law, 6 TRANSNAT’L L. THEORY 117 (2015); Prabha Kotiswaran & Nicola
Palmer, Rethinking the “International Law of Crime”: Provocations from Transnational Legal Studies, 6
TRANSNAT’L LEGAL THEORY 55 (2015).
8. See, e.g., Gregory Shaffer, Transnational Legal Ordering and State Change, in TRANSNATIONAL
LEGAL ORDERING AND STATE CHANGE 1 (Gregory Shaffer ed., 2013) [hereinafter Shaffer 2013a];
Gregory Shaffer, Dimensions and Determinants of State Change, in TRANSNATIONAL LEGAL ORDERING
AND STATE CHANGE 23 (Gregory Shaffer ed. 2013) [hereinafter Shaffer 2013b]; Terrence C. Halliday
& Gregory Shaffer, Transnational Legal Orders, in TRANSNATIONAL LEGAL ORDERS 3 (Terrence C.
Halliday & Gregory Shaffer eds., 2015) [hereinafter Halliday & Shaffer 2015a]; Terrence Halliday &
Gregory Shaffer, Researching Transnational Legal Orders, in TRANSNATIONAL LEGAL ORDERS 475
(Terrence C. Halliday & Gregory Shaffer eds., 2015) [hereinafter Halliday & Shaffer 2015b].
9. Organisation for Economic Co-operation and Development Convention on Combating
Bribery of Foreign Public Officials in International Business Transactions, Dec. 17, 1997, 37 ILM 1;
United Nations Convention against Corruption, Oct. 31, 2003, 2349 UNTS 41.
10. Criminal Code Act 1995 (Cth), Sch., §§ 12.1–12.6, 70.2 (Austl.) [hereinafter Code].
11. See, generally, OECD Convention, supra note 9, at Arts. 1–3; UN Convention, supra note 9,
[2019] AUSTRALIAN CORPORATE FOREIGN BRIBERY REFORMS 29

accompanying prosecutions. In December 2017, just days before International

Anti-Corruption Day, the Commonwealth proposed a Crimes Legislation Amendment
(Combatting Corporate Crime) Bill 2017 (hereinafter CCC Bill).12 That Bill would repeal
and replace the generic foreign bribery offense and create a new corporate crime of
failing to prevent foreign bribery, along with a system for negotiating corporate
settlements in listed federal criminal matters.
In this Article, I analyze domestic and international documents
surrounding the proposed Australian corporate bribery offense so as to compare
the TCL and TLO approaches for their explanatory power. I argue that there is a
repetition of the global problems with TCL theory in the Australian case and a clear
example of the potential for a TLO analysis. First, the Australian case materials
indicate a more heterogeneous set of inspirations for the corporate failing to prevent
offense than Boister’s account suggests. A mixture of drivers—international,
multinational, and domestic—are evident behind the proposed offense of corporate
omission. This mixture of factors better fits Halliday and Shaffer’s
conceptualization, which emphasizes the recursivity of transnational law-making
processes. Second, the proposed Australian failing to prevent offense can be seen,
not only as an instance of criminal law, but also as an example of law reform that
deploys a “new” and controversial technique for governance. Transnational legal
ordering theory is better able than TCL theory to illuminate these “non-criminal”
features for evaluation and categorization. In sum, although the CCC Bill was still
before Parliament as of early January 2019, this Australian case already shows the
importance of viewing transnational law reform as a social process in the setting of
particular jurisdictions, issue areas, and points in time.
The argument takes four steps towards its core conclusions. Part I
summarizes the rival accounts of transnational law in the work of Boister and of
Halliday and Shaffer respectively. Part II then provides background to the case
study from Australia and my approach to the materials on the Australian case. Part
III sets out my two findings from the analysis, examining the “transnational legality”
and “transnational criminality” of Australia’s potential corporate foreign bribery
offense, in turn. I then conclude but, to be clear, not with an estimation of the exact
reasons for the proposed offense or a judgement as to whether it would be “good”
or “bad” for anticorruption work or Australia. Instead, I summarize some key
influences on, and characterizations of, the corporate offense so as to identify the
strengths and limitations of the TCL and TLO conceptions of transnational criminal
justice.

I. TWO THEORIES OF TRANSNATIONAL LAW IN CRIMINAL JUSTICE

So, what is “transnational criminal law” and what is the “transnational legal
ordering” alternative? In Boister’s oft-cited account,13 transnational criminal law is
a composite theory of international and domestic criminal law, which draws on

at Arts. 16, 26 & 30.
12. Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017 (Cth) (Austl.) [hereinafter
CCC Bill].
13. Ivory 2018, supra note 1, at n. 9 (with further references and a review of allied concepts and
labels in the literature).
30 UCI JRNL. OF INT’L, TRANSNATIONAL, & COMP. L. [Vol. 4:26]

positivist and constitutionalist traditions of jurisprudence, as well as on empirical

accounts of norm emergence, especially from international relations. According to
Boister, some laws are transnational because of their multiple sources and their
cross-border crime focus. Hence, TCL consists of multilateral suppression
conventions (or other supra-state arrangements) that commit countries to
standardizing their domestic laws on particular crime problems and to cooperating
with each other in ways that enable the enforcement of those laws.14 These
“horizontal” rules are implemented through “vertical” obligations imposed by states
on people.15 Such a collection of norms forms a legal system linked by analytical
relationships and/or a legal order or field constituted by its subject matter (i.e.,
transnational crime).16
That transnational criminal subject matter is both normatively and
analytically significant. Boister does not dispute that some crimes or harms cross
borders or that legal change is recursive. As he writes, “the traffic” between
international and domestic legal systems may go both ways.17 However, citing
Nadelmann’s theory of “prohibition regimes” in international relations, he argues
that transnational criminal law tends to reflect the preferences of powerful Western
countries, especially the United States and the United Kingdom.18 The resulting
legal instruments are therefore likely to suffer from legitimacy deficits, as well as to
authorize disproportionate interferences with individual civil rights.19 Boister calls
for “general” or “ordering” principles that would correct TCL’s negative effects on
state sovereignty and the administration of individual justice.20
By contrast, “transnational legal ordering” theory is a sociolegal
methodology that can be used to examine the interacting “international and
domestic determinants of criminal justice policymaking” in particular places and
spaces.21 Like Boister, Halliday and Shaffer foreground the social construction of
transnational issues and recognize the influence of international politics in these
processes.22 However, TLO scholars are less concerned with whether a rule pertains
to a (perceived) cross-border situation or whether that (perceived) phenomenon is
ultimately regulated by an international instrument or regime. Rather, taking off


14. Boister 2003, supra note 2, at 962; BOISTER 2018, supra note 2, at 21–23. See also Boister
2014, supra note 2, at 19; Boister 2015, supra note 2, at 20–21.
15. Boister 2003, supra note 2, at 972; Boister 2014, supra note 2, at 14 & 18; Boister 2015, supra
note 2, at 14 & 19; BOISTER 2018, supra note 2, at 18.
16. Boister 2003, supra note 2, at 956–57; Boister 2014, supra note 2, at 12–13, 21–22; Boister
2015, supra note 2, at 25–26; BOISTER 2018, supra note 2, at Ch. 1 & 2, esp. 33.
17. BOISTER 2018, supra note 2, at 20. See also Boister 2014, supra note 2, at 14; Boister 2015,
supra note 2, at 14.
18. See, esp. Boister 2015, supra note 2, at 25–26; BOISTER 2018, supra note 2, at 16 & 20–21
(citing Ethan A. Nadelmann, Global Prohibition Regimes: The Evolution of Norms in International Society 44
INT’L ORG. 479 (1990) [hereinafter Nadelmann 1990]). See also PETER ANDREAS & ETHAN
NADELMANN, POLICING THE GLOBE: CRIMINALIZATION AND CRIME CONTROL IN
INTERNATIONAL RELATIONS 19–22 (2006) [hereinafter, ANDREAS & NADELMANN 2006].
19. See, esp., Neil Boister, Human Rights Protections in the Suppression Conventions, 2 HUM. RTS. L.
REV. 199, 200–03 (2002) [hereinafter Boister 2002].
20. See, esp., Boister 2015, supra note 2, at 28–30; BOISTER 2018, supra note 2, at 422–27.
21. Ely Aarsonson & Gregory Shaffer, The Transnational Legal Ordering of Criminal Justice: Mapping
the Field (in this issue).
22. Halliday & Shaffer 2015a, supra note 8, at 7, 21.
[2019] AUSTRALIAN CORPORATE FOREIGN BRIBERY REFORMS 31

from a new legal realist conception of law,23 they see transnational law as embodying
norms that are transported across national frontiers via cross-border social
structures, and which are possibly changed in the process.
A transnational legal order is “a collection of formalized legal norms and
associated organizations and actors that authoritatively order the understanding and
practice of law across national jurisdictions.”24 A TLO may be recorded in an array
of instruments on the “soft” to “hard” law spectrum;25 it may concern an array of
socially constructed problems, from the purely domestic to the typically cross-
border;26 and it may change states in their “legal” and “non-legal” dimensions.27
The extent to which change occurs it is likewise a function of a range of factors.
Some of these factors relate to the character (“legitimacy, clarity, and coherence”)
of the rules or processes, and others reflect the relative power of the receiving state,
as well as its domestic circumstances, exposure to intermediaries, and the
occurrence of “historic events.”28
Either way, the change-making process is not one-way or one-shot, but
recursive.29 The concept of recursivity “posits that changes and transformations of
states will be a function of three processes operating concurrently and cyclically – a
politics within international and transnational lawmaking, a politics within domestic
lawmaking, and a politics between them.”30 In contrast to Boister, Halliday and
Shaffer give recursivity a central place in their analysis.

II. COMPARING THE THEORIES IN A CASE OF FOREIGN BRIBERY REFORM

How do these theories of transnational law compare to each other at the
global level of anticorruption controls, and how were they compared in this Article
through the prism of the Australian case? Before discussing my findings on the
heuristic value of the two approaches, I briefly describe the CCC Bill in its wider
context, along with my approach to the case analysis.

A. Approach to the Comparison

As stated in the Introduction, this Article proceeds from a parallel work in
which I argued that anticorruption departs, in important respects, from
transnational criminal law conceptions.31 Within the broader literature on
international and transnational criminal law, Boister’s conceptualization of TCL has
contributed significantly to exposing under-theorized and under-researched areas

23. Id. at 17. See also Gregory Shaffer, The New Legal Realist Approach to International Law, 28
LEIDEN J. INT’L L. 189, 193 (2015); Victoria Nourse & Gregory Shaffer, Varieties of New Legal Realism:
Can a New World Order Prompt a New Legal Theory? 95 CORN. L. R. 61 (2009) [hereinafter Nourse &
Shaffer 2009].
24. Halliday & Shaffer 2015b, supra note 8, at 475.
25. Halliday & Shaffer 2015a, supra note 8, at 16.
26. Id. at 7; Shaffer 2013a, supra note 8, at 8.
27. Shaffer 2013a, supra note 8, at 11–12; Shaffer 2013b, supra note 8, at 24–33.
28. Shaffer 2013b, supra note 8, at 33–46.
29. Shaffer 2013a, supra note 8, at 14.
30. Id.
31. Ivory 2018, supra note 1.
32 UCI JRNL. OF INT’L, TRANSNATIONAL, & COMP. L. [Vol. 4:26]

of state coordination.32 Nonetheless, his framework for TCL is an uneasy fit with
the diversity of supra-state anticorruption standards and practices. These norms and
activities have both global and local qualities that escape the transnational criminal
lawyers’ conceptions of space and their allied concerns about regime legitimacy.
Further, the treaties could be considered both criminal and regulatory (newly
governmental), insofar as they require states to adopt administrative and civil
measures of social control. These non-criminal strategies are praised as pragmatic
and participatory, though they pose their own normative and practical challenges.
Finally, suppression conventions are not the only, or necessarily the most important,
source of supra-state proscription of corrupt behavior. “Anticorruptionism” is
equally undergirded by international instruments that are non- or internally-binding
and/or diagnostic in nature.
To address these deficiencies, I argued, it is necessary to situate extant
conceptions of TCL within a larger set of doctrinal and socio-legal inquiries into
new forms of global governance. My approach would mandate studies that deploy
“a combination of sociological, historical, and ecological methods to explore the
effect of a transnational legal order on corruption within particular countries or
organisations, and vice-versa.”33

B. Selecting Australia
To begin that undertaking for this Article, I conducted a desk-based study
of a proposed federal anticorruption reform in my home jurisdiction, Australia. This
research forms part of a larger project of inquiry into corporate foreign bribery laws
in the UK and Australia. The choice of Australia as the case study stems from both
my existing knowledge of the Australian situation and from Australia’s suitability
for comparing TCL and TLO approaches.
Australia, it is said, has an ambivalent, if not anxious, relationship with
international law.34 Under its constitution, Australia is broadly a dualist state, its
Commonwealth executive concluding agreements at the international level and its
legislature transposing those obligations in the domestic realm via legislation.35 The
capacity of the executive to thereby alter the federal balance of power or
compromise Australian freedom of action (sovereignty) has been a matter of
controversy as relates to criminal justice. Notoriously, Australian governments
campaigned for the creation of the International Criminal Court (hereinafter ICC)
in the 1990s before declaring Australia’s jurisdictional primacy when ratifying the
Rome Statute in the 2000s.36

32. Robert Currie, Neil Boister, An Introduction to Transnational Criminal Law 13 J. OF INT’L CRIM.
JUST. 1166, 1166–67 (2015); Elies van Sliedregt, International Criminal Law: Over-studied and Underachieving?
29 LEIDEN J. INT’L L. 1, 2 (2016). See also ROGER O’KEEFE, INTERNATIONAL CRIMINAL LAW ¶ 7.204,
at n. 415 (2015).
33. Ivory 2018, supra note 1, at 438.
34. Hilary Charlesworth et al., Deep Anxieties: Australia and the International Legal Order 25 SYD.
L. REV. 422 (2003).
35. GABRIELLE APPLEBY ET AL., AUSTRALIAN PUBLIC LAW 347 (2nd ed. 2014).
36. HILARY CHARLESWORTH ET AL., NO COUNTRY IS AN ISLAND: AUSTRALIA AND
INTERNATIONAL LAW 71–80 (2006) [hereinafter CHARLESWORTH ET AL. (2006)].
[2019] AUSTRALIAN CORPORATE FOREIGN BRIBERY REFORMS 33

In turn, the ICC debate is said to reflect Australia’s occasional roles as

“good international citizen” or “middle power.”37 With these labels, Australia is
ascribed some scope to act through multilateral institutions and as a norm
entrepreneur,38 despite its dependence on great power allies. Hence, Australia’s
reticence with respect to the ICC is partly attributed to its deference to the United
States, which ultimately refused to join the Court.39 Conversely, in the area of
anticorruption, Australia has adopted and promoted key international treaties
favoured by the US, but has been criticized for insufficiently implementing those
agreements.40
Viewed against this backdrop, the CCC Bill has much to offer as a vehicle
for comparison. The Bill has the hallmarks of a relatively orderly response to
international pressure (a la Boister’s theory) and exhibits the more recursive pattern
of influence predicted by transnational legal process scholars, Halliday and Shaffer.

C. Background to the CCC Bill

As put to Parliament by Malcolm Turnbull’s conservative coalition
government in December 2017, the CCC Bill proposes substantial changes to the
Australian rules on corporate liability for foreign bribery.41 Since the late 1990s,
Division 70 Commonwealth Criminal Code (hereinafter Code) has prohibited the
intentional provision, etc., of illegitimate benefits to “foreign public officials” within
and outside Australia’s territory.42 Under Part 2.5 Code, a “body corporate” may be
attributed with the physical elements of an offense that is committed by a corporate
“employee, agent, or officer.”43 The mental elements are ascribed to a corporation
who “authorised or permitted” the behavior,44 as determined inter alia by analyzing
the conduct of its board or “high managerial agent[s]” or assessing the quality of its
“corporate culture.”45
Though notable for these detailed provisions,46 Part 2.5 still requires the
prosecutor to prove all the physical and mental elements of an offense, like foreign
bribery, beyond reasonable doubt.47 Proposed s. 70.5A CCC Bill would depart from
this position by rendering certain bodies corporate strictly liable for failing to


37. Melissa Conley Tyler, et al., Australia’s International Personality: Historical, Legal and Policy
Perspectives, in INTERNATIONAL LAW IN AUSTRALIA 1 (Emily Crawford & Donald R. Rothwell eds., 3rd
ed. 2017).
38. Id. at 9–11, 18–22; Jason Ralph, The Responsibility to Protect and the Rise of China: Lessons from
Australia’s Role as a “Pragmatic” Norm Entrepreneur 17 INT’L REL. OF THE ASIA-PAC. 35, 52 (2017) citing
and discussing ANDREW CARR, WINNING THE PEACE: AUSTRALIA’S CAMPAIGN TO CHANGE THE
ASIA-PACIFIC (2015).
39. CHARLESWORTH ET AL., supra note 36, at 80 (2006).
40. See, e.g., Jo-Anne Gilbert & Jason Sharman, Turning a Blind Eye to Bribery: Explaining Failures
to Comply with the International Anti-Corruption Regime 64 POL. STUDIES 74, 82–86 (2016) (discussing cases
involving the Australian Wheat Board and two subsidiaries of the Reserve Bank of Australia).
41. See, generally, Cat Barker & Monica Biddington, Crimes Legislation Amendment (Combatting
Corporate Crime) Bill 2017, Parliamentary Library Bills Digests, No. 105, 2017–18 (2018).
42. Code, supra note 10, at §§ 70.1, 70.2, 70.5.
43. Id. at § 12.2.
44. Id. at § 12.3(1).
45. Id. at § 12.3(2).
46. CELIA WELLS, CORPORATIONS AND CRIMINAL RESPONSIBILITY 102 (2nd ed. 2001).
47. Code, supra note 10, at §§ 13.1–13.2.
34 UCI JRNL. OF INT’L, TRANSNATIONAL, & COMP. L. [Vol. 4:26]

prevent their associates from bribing a foreign public official; to avoid liability a
defendant firm would have to establish that it had in place procedures adequate to
prevent the associate’s corruption.48 A minister must publish a guidance for
corporations on possible preventive measures,49 and corporations may have the
option of negotiating with prosecutors for a deferred prosecution agreement
(hereinafter DPA).50
At the time of writing, it was not clear whether and, if so, when the CCC
Bill would be passed into law. Later in December 2017, the Australian Federal Police
(hereinafter AFP) and Commonwealth Director of Public Prosecutions (hereinafter
CDPP) released a “guideline” on corporate self-reporting of foreign bribery.51 In
June 2018, the Attorney-General opened consultations on a Code of Practice, which
would complement the DPA scheme in the CCC Bill.52 However, by late 2018, the
conservative parties had changed their prime minister, and the CCC Bill was
awaiting debate in Parliament. In contrast, a roughly contemporaneous bill on
protections for private-sector “whistleblowers” had been read a third time;
legislation on corporate reporting with respect to “modern slavery” had been
enacted.53

D. Method of Analysis
To compare TCL and TLO theories in the Australian case, I undertook a
content analysis of documents justifying and describing the corporate foreign
bribery measures in the CCC Bill. My selection of documents was motivated by two
questions: (1) What were the international, transnational, and domestic influences
on this proposal for reform? and (2) Is the failing to prevent offense an example of
criminal, preventive, or “new governance” approaches to behaviour control?
From the domestic sources, I selected three categories of documents to
review: (1) the Bill itself;54 (2) statements on the Bill and its exposure draft from the
Attorney-General’s Department (hereinafter AGD);55 and (3) Senate committee


48. CCC Bill, supra note 12, at Sch. 1, cl. 8, § 70.5A(5).
49. Id. at Sch. 1, cl. 8, § 70.5B.
50. Id. at Sch. 2 (proposing amendments to the Director of Public Prosecutions Act 1983).
51. AFP & CDPP, Self-Reporting of Foreign Bribery and Related Offending by Corporations (Dec. 8,
2017) (Austl.), https://www.cdpp.gov.au/sites/g/files/net2061/f/20170812AFP-CDPP-Best-
Practice-Guideline-on-self-reporting-of-foreign-bribery.pdf (last visited Dec. 24, 2018).
52. Media Release, The Hon. Christian Porter MP, Attorney-General, Consultation on New
Measures to Combat Corporate Crime (Jun. 8, 2018) (Austl.), https://www.attorneygeneral.gov.au/Media/
Pages/Consultation-on-new-measure-to-combat-corporate-crime-8-june-2018.aspx (last visited Dec.
22, 2018).
53. Modern Slavery Act 2018 (Cth) (Austl.); Treasury Laws Amendment (Enhancing Whistleblower
Protections) Bill 2018 (Cth) (Austl.).
54. Supra note 12.
55. See, esp., AGD, Proposed Amendments to the Foreign Bribery Offence in the Criminal Code Act 1995:
Public Consultation Paper (Apr. 2017) (Austl.), https://www.ag.gov.au/Consultations/Pages/Proposed-
amendments-to-the-foreign-bribery-offence-in-the-criminal-code-act-1995.aspx (last visited Jul. 16,
2018) [hereinafter AGD, Bribery Consultation Paper]; Explanatory Memorandum, Crimes Legislation Amendment
(Combatting Corporate Crime) Bill 2017 (Cth) (Austl.) [hereinafter CCC Bill EM]; Senator the Hon. James
McGrath, Second Reading Speech: Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017,
Commonwealth, Parliamentary Debates, Senate 9906, 9908 (Dec. 6, 2017) (Austl.) [hereinafter CCC
Bill Second Reading Speech]; AGD, Submission to the Legal & Constitutional Affairs Legislation Committee,
[2019] AUSTRALIAN CORPORATE FOREIGN BRIBERY REFORMS 35

reports on the Bill and the broader topic of foreign bribery.56 As my review
progressed, I also focused on materials that discussed the failing to prevent offense
rather than the DPA scheme.
I then cross-checked my reading of the Bill and related AGD documents
against domestic and international sources. As to the domestic sources, I reviewed
three years’ of annual reports of the AFP, CDPP and the Australian Securities and
Investments Commission (hereinafter ASIC) (the corporate regulator) for
discussion of anti-foreign bribery work bearing on the proposed reform.57 For the
international materials, I considered OECD and UN monitoring body reports on

Crimes Legislation Amendment (Combating Corporate Crime) Bill 2017, Sub. No. 7 (undated) (Austl.),
https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Af
fairs/CombattingCrime/Submissions (last visited Jul. 16, 2018) [hereinafter AGD, LACALC
Submission]; The Hon. Christian Porter MP, Attorney General, Letter to Senator Helen Polley, Chair, Senate
Scrutiny of Bills Committee, No. MS18-000369, 10 (Mar. 6, 2018) (Austl.), https://www.aph.gov.au/
senate_scrutiny_digest (last visited Jul. 19, 2018) [hereinafter AG, Letter to Sen. Polley]; AGD, Response:
Senate Legal and Constitutional Affairs Legislation Committee: Crimes Legislation Amendment (Combatting Corporate
Crime) Bill 2017: Questions on Notice (Mar. 7, 2018) (Austl.), https://www.aph.gov.au/Parliamentary_
Business/Committees/Senate/Legal_and_Constitutional_Affairs/CombattingCrime/Additional_Doc
uments (last visited Jul. 16, 2018) [hereinafter AGD, LACALC Response (Mar. 2018)].
56. See, esp., Senate Legal and Constitutional Affairs Legislation Committee, Crimes Legislation
Amendment (Combatting Corporate Crime) Bill 2017 Report (Apr. 2018) (Austl.),
https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Legal_and_Constitutional_Af
fairs/CombattingCrime (last visited Jul. 16, 2018) [hereinafter Senate, LACALC Bill Report]; Senate,
Economic References Committee, Foreign Bribery: Report (Mar. 2018) (Austl.),
https://www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/Foreignbribery4
5th/Report (last visited Jul. 16, 2018) [hereinafter Senate, ERC Report].
57. The reports are available at https://www.afp.gov.au/about-us/publications-and-reports/
annual-reports (AFP), https://www.cdpp.gov.au/publications (CDPP), and https://asic.gov.au/
about-asic/corporate-publications/asic-annual-reports (ASIC) (all last visited Dec. 26, 2018). See, further,
infra note 113.
36 UCI JRNL. OF INT’L, TRANSNATIONAL, & COMP. L. [Vol. 4:26]

Australia,58 the UK59 and US.60 As relevant, I drew on UK and US corporate foreign
bribery laws and associated guidelines on compliance and sentencing.
Analysis of the selected texts yielded data relevant to the research questions
in clusters of themes. Using and refining related key words, I searched the PDF
documents manually, extracting relevant passages, and organizing the extracts.
Through this process, important texts were identified for a second round of data
extraction, in which the steps were repeated and larger passages taken out and
coded.

III. TCL AND TLO THEORY IN THE AUSTRALIAN CASE

The content analysis yielded two main answers to the question: How do
TCL and TLO theory perform when applied to a specific case of anticorruption
reform? The findings of the analysis are grouped around the concepts of
“transnational law” (Part III(A)) and “criminal law” (Part III(B)) in what follows.

58. Organisation for Economic Co-operation and Development Working Group on Bribery
in International Business Transactions [hereinafter OECD-WGB], AUSTRALIA: REVIEW OF THE
IMPLEMENTATION OF THE CONVENTION AND 1997 RECOMMENDATION (1999) [hereinafter OECD-
WGB, AU-PH1]; OECD-WGB, AUSTRALIA: PHASE 2 REPORT ON THE APPLICATION OF THE
CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL
BUSINESS TRANSACTIONS AND THE 1997 RECOMMENDATION ON COMBATING BRIBERY IN
INTERNATIONAL BUSINESS TRANSACTIONS (Jan. 4, 2006) [hereinafter OECD-WGB, AU-PH2];
OECD-WGB, AUSTRALIA: PHASE 2 FOLLOW-UP REPORT ON THE IMPLEMENTATION OF THE PHASE
2 RECOMMENDATIONS, APPLICATION OF THE CONVENTION ON COMBATING BRIBERY OF
FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL BUSINESS TRANSACTIONS AND THE 1997
RECOMMENDATION ON COMBATING BRIBERY IN INTERNATIONAL BUSINESS TRANSACTIONS (Aug.
29, 2009); OECD-WGB, PHASE 3 REPORT ON IMPLEMENTING THE OECD ANTI-BRIBERY
CONVENTION IN AUSTRALIA (Oct. 12, 2012) [hereinafter OECD-WGB, AU-PH3]; OECD-WGB,
AUSTRALIA: FOLLOW-UP TO THE PHASE 3 REPORT & RECOMMENDATIONS (Apr. 3, 2015)
[hereinafter OECD-WGB, AU-PH3-FU]; OECD-WGB, PHASE 4 REPORT: AUSTRALIA (Dec. 15, 2017)
[hereinafter OECD-WGB, AU-PH4], http://www.oecd.org/daf/anti-bribery/countryreportsonthe
implementationoftheoecdanti-briberyconvention.html (last visited Jul.–Sep. 2018).
59. See, esp., OECD-WGB, UNITED KINGDOM: PHASE 1TER REPORT ON THE APPLICATION
OF THE CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN
INTERNATIONAL BUSINESS TRANSACTIONS AND 2009 RECOMMENDATION ON COMBATING
BRIBERY IN INTERNATIONAL BUSINESS TRANSACTIONS (Dec. 16, 2010) [hereinafter OECD-WGB,
UK-PH1TER]; OECD-WGB, UNITED KINGDOM: PHASE 2 REPORT ON THE APPLICATION OF THE
CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL
BUSINESS TRANSACTIONS AND THE 1997 RECOMMENDATION ON COMBATING BRIBERY IN
INTERNATIONAL BUSINESS TRANSACTIONS (Mar. 17, 2005) [hereinafter OECD-WGB, UK-PH2];
OECD-WGB, UNITED KINGDOM: PHASE 2BIS REPORT ON THE APPLICATION OF THE
CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL
BUSINESS TRANSACTIONS AND THE 1997 RECOMMENDATION ON COMBATING BRIBERY IN
INTERNATIONAL BUSINESS TRANSACTIONS (Oct. 16, 2008) [hereinafter OECD-WGB, UK-PH2BIS];
OECD-WGB, UNITED KINGDOM: PHASE 2BIS FOLLOW-UP REPORT ON THE IMPLEMENTATION OF
THE PHASE 2BIS RECOMMENDATIONS (May 23, 2011) [hereinafter OECD-WGB, UK-PH2BIS-FU].
60. See, esp., OECD-WGB, UNITED STATES: PHASE 2 REPORT ON THE APPLICATION OF THE
CONVENTION ON COMBATING BRIBERY OF FOREIGN PUBLIC OFFICIALS IN INTERNATIONAL
BUSINESS TRANSACTIONS AND THE 1997 RECOMMENDATION ON COMBATING BRIBERY IN
INTERNATIONAL BUSINESS TRANSACTIONS (Oct. 2002) [hereinafter OECD-WGB, US-PH2]; OECD-
WGB, PHASE 3 REPORT ON IMPLEMENTING THE OECD ANTI-BRIBERY CONVENTION IN THE
UNITED STATES (Oct. 2010) [hereinafter OECD-WGB, US-PH3].
[2019] AUSTRALIAN CORPORATE FOREIGN BRIBERY REFORMS 37

A. “Transnational Law” and the Proposed Australian Reforms

The first finding concerns the extent to which the proposed Australian
corporate foreign bribery offense conforms to TCL or TLO pictures of
transnational law. In the parallel article just described, I found that supra-state
anticorruption laws depart, in subtle but significant ways, from Boister’s concept of
norms that cross borders.61 In the Australian case, the corporate failing to prevent
offense would “transcend national frontiers”62 insofar as the putative bribe-taker is
a “foreign public official” to Australia and the Commonwealth’s geographical
jurisdiction is extended beyond Australian territory.63 The new crime also appears
to implement Australia’s duties to criminalize foreign bribery, hold legal persons
responsible, and punish entities for wrongs under the OECD and UN
Conventions.64 The OECD treaty is cited in the literature, moreover, as the prima
facie output of a global prohibition regime due to its close association with the US
and its Foreign Corrupt Practices Act 1977 (hereinafter FCPA).65 The Turnbull
government recalled the international consensus when it described foreign bribery
as injurious due to its effect on communities, business, and markets.66 All that said,
with the failing to prevent offense, Australia would appear to be responding to soft
instruments, as well as changes in other “Anglo” countries and other agentic and
structural drivers.

1. International Standards and Statements

For a start, neither the OECD Convention nor the UN Convention
requires Australia to criminalize corporate failures to prevent foreign bribery. The
treaties are silent on the rules for attributing guilt to legal persons other than to say
that state parties shall take measures “in accordance” or “consistent with [their] legal
principles.”67 Commentary suggests that the treaties were designed to accommodate
the traditional reluctance of some states to recognize the criminal responsibility of
legal persons.68
Instead, the idea that corporations should be held liable for foreign bribery
through managerial omission is mentioned in a non-binding 2009 OECD

61. Ivory 2018, supra note 1, at 423–27.
62. PHILLIP JESSUP, TRANSNATIONAL LAW: STORRS LECTURES ON JURISPRUDENCE 2 (1956).
63. CCC Bill, supra note 12, at Sch. 1, cl. 8, § 70.2 & 70.5A(1)(b). The definition of foreign
public official under § 70.1 Code includes persons formally or functionally associated with foreign
states, foreign governments, and public international organizations, as well as intermediaries of those
persons.
64. See AGD, Bribery Consultation Paper, supra note 55, at 9; CCC Bill, Second Reading Speech,
supra note 55, at 9908 (governmental references suggesting the CCC Bill’s compliance with the
conventions in general). See also CCC Bill EM, supra note 55, at ¶ 7.
65. Pub. L. No. 95–213 (1977), 15 U.S.C. §§ 78dd-1. See, further, Kenneth Abbott & Duncan
Snidal, Values and Interests: International Legalization in the Fight against Corruption, 31 J. OF L. STUD. S141,
S154 (2002); ANDREAS & NADELMANN 2006, supra note 18, at 55–56.
66. CCC Bill EM, supra note 55, at ¶ 6; CCC Bill Second Reading Speech, supra note 55, at 9906.
See also AGD, Bribery Consultation Paper, supra note 55, at 1.
67. OECD Convention, supra note 9, at Art. 2; UN Convention, supra note 9, at Art. 26.
68. Mark Pieth, Article 2: The Responsibility of Legal Persons, in THE OECD CONVENTION ON
BRIBERY: A COMMENTARY 212, 223 & 225 (Mark Pieth et al., eds., 2nd ed. 2014).
38 UCI JRNL. OF INT’L, TRANSNATIONAL, & COMP. L. [Vol. 4:26]

Recommendation on the implementation of Art. 2 OECD Convention.69

According to Annex I of the 2009 Recommendation, member states should ensure
that their legal systems allow corporations to be held responsible for the crimes of
a range of associated actors, including senior leaders who fail to prevent bribery at
“lower level[s].”70 Previously, the European Commission had utilized a similar
concept to harmonize member state rules on corporate liability for certain forms of
economic malfeasance affecting the European Union.71 More recently, G20 leaders
borrowed and broadened the language in the OECD’s Annex I in their 2017 High-
Level Principles on the Liability of Legal Persons for Corruption.72
Numerous international and non-governmental organizations (hereinafter
NGOs) complement these state-to-state standards by telling companies themselves
what they should do to ensure compliance with anti-bribery laws. For example, the
AGD intends to be informed by “ISO 37001” as well as a joint OECD, UN, and
World Bank handbook that, in turn, purports to digest six other “internationally
recognised business instruments on anti-bribery.”73 Given this diversity, it cannot
be assumed that the OECD or UN Convention is the actual or analytical “match”
for the proposed Australian rule. It could also be that Australia responded to a wider
understanding—even an emerging general legal principle or custom—on the
optimal interpretation of international corporate criminal liability obligations.
Further, neither the international anticorruption watchdogs nor the federal
government presents the failing to prevent offence as necessary for Australian
compliance with treaty law. Both the UN Implementation Review Mechanism and
the OECD Working Group on Bribery in International Business Transactions
(hereinafter OECD-WGB) depict Australia as having adequately transposed the
conventions’ articles on the criminalization of bribery and corporate liability. The
difficulties lie with Australia’s enforcement of its existing legislation. For example,
in its Phase 1 review, the OECD-WGB endorsed Australia’s legal framework for


69. OECD, Recommendation of the Council for Further Combating Bribery of Foreign Public
Officials in International Business Transactions, Annex I, C(2009)159/REV1/FINAL (Nov. 26, 2009)
as amended by C(2010)19 (Feb. 18, 2010) [hereinafter OECD, 2009 Recommendation].
70. Id. at ¶ B(b), third intent.
71. Second Protocol, drawn up on the basis of Article K.3 of the treaty on European Union,
to the Convention on the protection of the European Communities’ financial interests, Jun. 19, 1997,
1997 O.J. (C 221), Jul. 19, 1997, 12, Art. 3(2) (requiring states to ensure the liability of legal persons
where lack of supervision or control by senior persons made possible fraud, active corruption, or money
laundering, as defined). See also Directive (EU) 2017/1371 of the European Parliament and of the
Council of 5 July 2017 on the fight against fraud to the Union’s financial interests by means of criminal
law, Jul. 5, 2017, 2017 O.J. (L 198), Jul. 28, 2017, 29, Art. 6(2).
72. G20, Leaders’ Declaration: Shaping an Interconnected World, Annex: G20 High-Level
Principles on the Liability of Legal Persons for Corruption, 8 Jul. 2017,
https://www.g20germany.de/Webs/G20/EN/G20/Summit_documents/summit_documents_node.
html, principle 4. For example, whereas the OECD would have states take a flexible approach to the
status of the triggering person, the G20 would have them make the relevant status flexible or disregard
status entirely.
73. AGD, LACALC Response (Mar. 2018), supra note 55, at 12 citing International Organization
for Standardization [hereinafter ISO], 2016, ISO 37001: Anti-Bribery Management Systems –
Requirements with Guidance for Use, https://www.iso.org/standard/65034.html and OECD,
UNODC, and World Bank Group, Anti-Corruption Ethics and Compliance Handbook for Business 15 (2013),
http://www.oecd.org/corruption/anti-corruption-ethics-and-compliance-handbook-for-business.htm
(last visited Sept. 5, 2018). See also Senate, ERC Report, supra note 56, at ¶ 4.76.
[2019] AUSTRALIAN CORPORATE FOREIGN BRIBERY REFORMS 39

prohibiting foreign bribery and attributing guilt to corporations.74 In Phase 2, the

OECD-WGB praised “section 12 [as] ambitious and progressive,” if untested.75
Only from Phase 3 did the examiners express “serious[] concer[n]” with Australia’s
low rate of enforcement.76 The Phase 4 report, which was released less than two
weeks after the CCC Bill, stops short of describing the provisions as necessary,
though it “welcome[s]” the failing to prevent offense as an attempt to remove
“barriers” to prosecution and “recommend[s] . . . follow-up on . . . enact[ment].”77
The UN reviewers have not had an opportunity to report on the proposed
Australian offense, but they endorsed a related UK model in a review of British
implementation of Art. 26 UN Convention.78
Australian government documents echo this narrative by asserting that
Australia has already executed its international obligations79 and that the s. 70.5A
offense would “[go] beyond the requirements of the [OECD] Convention.”80 On
this account, all changes in the Bill would enhance the Commonwealth’s capacity to
enforce international and domestic norms against foreign bribery, particularly with
respect to companies in corporate groups and transnational supply chains.81

2. Anglo-American Precedents
In addition, when selecting the failing to prevent offense, Australia would
appear to have followed an Anglo-American precedent that was, not so much
required, but recommended and perhaps extended through international
instruments and processes. Already in the early 2000s, the OECD had described the
general US federal corporate criminal attribution rules as “reinforc[ing] the
effectiveness of the FCPA [and] also encourag[ing] corporations to implement
measures of deterrence throughout their organisations.”82 The FCPA’s bribery
offense may be committed by legal persons,83 who are strictly vicariously liable, at

74. OECD-WGB, AU PH-1, supra note 58, at 23.
75. OECD-WGB, AU-PH2, supra note 58, at ¶ 2, 148–53 (incl. recommendation).
76. OECD-WGB, AU-PH3, supra note 58, at ¶ 7, 42–43. See also AU-PH3-FU, supra note 58, at
¶ 2 (noting an increase in the number of investigations, but still only one prosecution for which
reporting was then suppressed).
77. OECD-WGB, AU-PH4, supra note 58, at ¶ 153–54.
78. CONFERENCE OF THE STATE PARTIES TO THE UNITED NATIONS CONVENTION
AGAINST CORRUPTION [hereinafter UNCAC-COSP], IMPLEMENTATION REVIEW GROUP, COUNTRY
REVIEW REPORT OF THE UNITED KINGDOM, ¶ 32 & 48 (2013), http://www.unodc.org/
unodc/treaties/CAC/country-profile/CountryProfile.html?code=GBR (last visited Nov. 8, 2018). See
also UNCAC-COSP, IMPLEMENTATION REVIEW GROUP, EXECUTIVE SUMMARY: AUSTRALIA,
CAC/COSP/IRG/I/2/1, 3 (2012).
79. AGD, Bribery Consultation Paper, supra note 55, at 3; CCC Bill EM, supra note 55, at ¶ 7. See
also Senate, LACALC Bill Report, supra note 56, at ¶ 1.3.
80. AGD, LACALC Submission, supra note 55, at 7.
81. CCC Bill EM, supra note 55, at ¶ 7–8; AGD, LACALC Response (Mar. 2018), supra note 55,
at 2–3; AGD, LACALC Submission, supra note 55, at 7. See also AGD, Bribery Consultation Paper, supra
note 55, at 8–9; OECD-WGB, AU-PH4, supra note 58, at ¶ 153–54; Senate, LACALC Bill Report, supra
note 56, at ¶ 2.85–2.86.
82. OECD-WGB, US-PH2, supra note 60, at ¶ 15 (Oct. 2002). See also OECD-WGB, US-PH3,
supra note 60, at ¶ 98.
83. See, generally, Rahul Kohli, Foreign Corrupt Practices Act 55 AM. CRIM. L. REV. 1269, 1280–82
(2018).
40 UCI JRNL. OF INT’L, TRANSNATIONAL, & COMP. L. [Vol. 4:26]

common law, for an employee acting “within the scope and nature of his
employment[] and . . . at least in part, to benefit the corporation.”84 There is no
defense that the corporation prohibited misconduct with internal policies and
procedures.85 Nevertheless, US courts may reduce financial penalties for firms with
“effective compliance and ethics program[s].”86 Prosecutors should consider “the
existence and effectiveness of . . . pre-existing compliance program[s]” when
making charging and negotiation decisions.87 Corporations are afforded “insights”
into the “hallmarks of effective compliance practice” via a non-binding
prosecutorial guidance document.88
Back at the OECD, by the start of the 2010s, the Working Group had
endorsed a similar UK offense, defense, and guidance model,89 after having been
highly critical of prior British laws.90 Section 7 Bribery Act 2010 (UK) made it a crime
for “commercial organisation[s]” to fail to prevent bribery by an “associated
person,” defined in s. 8 to include an “employee, agent or subsidiary.”91 Liability
under s. 7 Bribery Act 2010 (UK) is no-fault (strict) but the organization has a defense
if it can show that it had implemented procedures adequate to prevent bribery.92
Adequate procedures are discussed further in a non-binding guidance issued by the
Ministry of Justice under s. 9.93 Separate legislation establishes a system of DPAs
for corporations that were, or commit to become, compliant, amongst other
things.94 Therefore, the UK would seem to have created a corporate anti-foreign
bribery framework that is broadly similar to the US model, albeit via a strict
organizational offense, adequate procedures defense, and negotiated settlement
scheme. Whilst the transnational origins of the UK scheme is beyond this Article’s
scope, it is at least interesting to note that British examiners had participated in the
Phase 2 and 3 OECD reviews of the US.95
Returning to Australia, both the OECD and the AGD acknowledge that
proposed s. 70.5A is “similar to” the offense in s. 7 Bribery Act 2010 (UK),96 if not


84. See, generally, Blake Weiner, et al., Corporate Criminal Liability, 55 AM. CRIM. L. REV. 961, 964–
65 (2018).
85. Weiner et al., Corporate Criminal Liability, supra note 84, at 966, 968.
86. U.S. SENTENCING GUIDELINES MANUAL (2018) §§ 8B2.1, 8C2.5(f) (2018).
87. U.S. DEP’T OF JUSTICE, JUSTICE MANUAL, §§ 9-28.300 (2018).
88. CRIMINAL DIV., U.S. DEP’T OF JUSTICE & ENF’T DIV., U.S. SEC. & EXCH. COMM’N, A
RESOURCE GUIDE TO THE U.S. FOREIGN CORRUPT PRACTICES, 57–65 (2015).
89. See, esp., OECD-WGB, UK-PH1TER, supra note 59, at ¶ 79–80, 83; OECD-WGB, UK-
PH2BIS-FU, supra note 59, at ¶ 2.
90. OECD-WGB, UK-PH2, supra note 59, at ¶ 195–206; OECD-WGB, UK-PH2BIS, supra note
59, at 4, ¶ 65–92.
91. Bribery Act 2010, § 8(1) & (3) (Eng.).
92. Id. at § 7(2).
93. Id. at § 9; Ministry of Justice, Guidance about Procedures which Relevant Commercial
Organisations Can Put into Place to Prevent Persons Associated with Them from Bribing (Eng.) (Mar.
2011), https://www.gov.uk/government/publications/bribery-act-2010-guidance (last visited Feb. 27,
2018).
94. Crime and Courts Act 2013, Sch. 17 (Eng.); SERIOUS FRAUD OFFICE, DEFERRED
PROSECUTION AGREEMENTS CODE OF PRACTICE: CRIME AND COURTS ACT 2013, Feb. 14, 2014, ¶
2.8.1(iii), 2.8.2(iii), 7.10(iii), https://www.sfo.gov.uk/?wpdmdl=1447 (last visited Nov. 7, 2018).
95. OECD-WGB, US-PH2, supra note 59, at ¶ 2; OECD-WGB, US-PH3, supra note 59, at ¶ 6.
96. CCC Bill Second Reading Speech, supra note 55, at 9907; AGD, LACALC Response (Mar.
2018), supra 55, at 3; AGD, LACALC Submission, supra note 55, at 7; OECD-WGB, AU-PH4, supra note
[2019] AUSTRALIAN CORPORATE FOREIGN BRIBERY REFORMS 41

“modeled on” that provision.97 The AGD cites both the UK “guidance” and US
Department of Justice compliance questionnaire among the standards it shall
consider when devising the Australian compliance principles under s. 70.5B CCC
Bill.98 Its proposed DPA regime is “consistent with” and a “hybrid of” US and UK
practice.99

3. Australian and Multinational Drivers

Looking finally from text to subtext, the CCC Bill shows signs of influence
from other less public international actors and factors than predominate in the TCL
model. First, the Bill appears to be a means for government to maintain status and
meet evolving demands for performance of sovereign functions. Thus, the AGD
describes its review of the Code as “appropriate” given that “[i]t has been 18 years
since the foreign bribery offence was introduced” and there is a need “to ensure
[that] the law reflects community expectations and does not present unnecessary
barriers to effective prosecution.”100 Discussing the final version of the Bill, the
executive describes foreign bribery as a danger to Australia’s “reputation” and
“international standing,” amongst other things.101 The documents do not mention
any particular source of threat to Australia’s relative position; however, the country’s
performance on the Transparency International Corruption Perceptions Index had
suffered in previous years.102 An earlier governmental press release mentioned that
NGO’s rankings in connection with Australia’s pride in its “position and
reputation . . . as one of the least corrupt countries in the world.”103
Second, the surrounding documents indicate that the AGD detected
support for the failing to prevent offense among multinational businesses within
Australia’s jurisdiction. For example, when discussing the s. 70.5B guidance, the
AGD notes that benchmarking against the UK governmental compliance guidelines
“is in line with the preference Australian industry expressed during the 2017
consultation process and will ensure minimal impact on Australian corporations
that have already framed their anti-bribery policies on international guidelines.”104
In other statements, the AGD indicates that standardized compliance requirements

58, at ¶ 153. See also AGD, Bribery Consultation Paper, supra note 55, at 8.
97. AGD, LACALC Submission, supra note 55, at 4.
98. AGD, LACALC Response (Mar. 2018), supra note 55, at 12.
99. Id. at 26, 35; AGD, LACALC Submission, supra note 55, at 3, 12. See also CCC Bill EM, supra
note 55, at 9907.
100. AGD, Bribery Consultation Paper, supra note 55, at 3.
101. CCC Bill EM, supra note 55, at ¶ 6; CCC Bill Second Reading Speech, supra note 55, at
9906. See also AGD, Bribery Consultation Paper, supra note 55, at 1, 9.
102. See, e.g., Media Release: Corruption Perceptions Index (CPI) 2017 Shows Australia Falls again in
Corruption Perceptions Index Scores, TRANSPARENCY INTERNATIONAL AUSTRALIA,
http://transparency.org.au/corruption-perceptions-index-cpi-2017-shows-australia-falls-corruption-
perceptions-index-scores (last visited Sep. 5, 2018).
103. Media Release, The Hon. Michael Keenan MP, Minister for Justice, AFP-Hosted Anti-
Fraud and Anti-Corruption Centre (Jul. 31, 2014) (Austl.),
http://pandora.nla.gov.au/pan/143276/20141001-1307/www.ministerjustice.gov.au/Mediareleases/
Pages/2014/ThirdQuarter/31July2014-AFPHostedFraudAndAntiCorruptionCentre.html (last visited
Dec. 22, 2018).
104. AGD, LACALC Response (Mar. 2018), supra note 55, at 12.
42 UCI JRNL. OF INT’L, TRANSNATIONAL, & COMP. L. [Vol. 4:26]

would confer efficiency gains (rather than impose compliance burdens) on

Australian firms, which “operat[e] overseas.”105 Multinational businesses, in other
words, would need to make a lesser investment of resources to gain equal or greater
confidence that their internal systems and procedures meet the Australian standards.
The Senate Economics References Committee, somewhat by contrast, recorded
private sector concern about the strict liability offense in proposed s. 70.5A CCC
Bill. However, the Committee ultimately formed the view that the burden of proof
was justified by the compliance defense and the alignment with longstanding UK
practice.106
Third, the materials reflect ideas about crime and corporations that predate
or parallel the OECD Convention and anticorruptionism. Hence, the CCC Bill is
said to address “serious corporate crime.” That category is described by reference
to the complexity, opacity, and sophistication of its offenses (and offenders), as well
as the cross-border qualities of its investigations.107 The nomenclature of
“seriousness”, as used in the UK, is connected to broader trends towards preventive
approaches to justice, which are discussed below.108 Further, there is a history in
Australian federal law of corporate liability norms being addressed to the perceived
difficulties of attributing mental states to “modern” business organizations. Already
in the early 1990s, less hierarchical corporate structures and greater use of delegation
were judged to inhibit the identification of individuals who were sufficiently senior
to enable the imputation of guilt to companies.109 Moreover, it was recognized that
particular organizational (“corporate”) cultures could tacitly authorize a wrong.110
Part 2.5 Code was a reaction to these concerns. But, for extreme and “difficult to
detect” dangers, it was always the intention of the Code’s drafters that the burden
of proof could be reversed and liability thereby extended.111

4. Theorizing Transnational Law Reforms

To summarize, there are interesting questions to be asked about the cross-
border qualities of Australia’s proposed “failing to prevent” offense. However,
these questions are not only about the alignment of domestic and international
standards in the abstract, or the formation of the global rules through a prohibition
regime. Of equal concern are the actual processes by which international
organizations, foreign states, and other factors and actors contributed to the choice
of reform – and whether, when, and in what final form that choice will be enacted.

105. AGD, Bribery Consultation Paper, supra note 55, at 9; AGD, LACALC Submission, supra note
55, at 9. See also Senate, LACALC Bill Report, supra note 56, at ¶ 2.89.
106. Senate, ERC Report, supra note 56, at ¶ 4.98.
107. CCC Bill EM, supra note 55, at ¶ 2, 8; CCC Bill Second Reading Speech, supra note 55, at
9906. See also AGD, Bribery Consultation Paper, supra note 55, at 1, 3–4, 8; AGD, LACALC Response (Mar.
2018), supra note 55, at 3, 8. See also Senate, LACALC Bill Report, supra note 56, at ¶ 2.85–2.88.
108. JAMES THOMAS OGG, PREVENTIVE JUSTICE AND THE POWER OF POLICY TRANSFER
(2015). See, further, infra Part III(B)(2).
109. Criminal Law Officers Committee of the Standing Committee of the Attorneys-General,
MODEL CRIMINAL CODE: GENERAL PRINCIPLES OF CRIMINAL RESPONSIBILITY (FINAL REPORT)
105 (1992).
110. Id. at 113.
111. See Explanatory Memorandum, Criminal Code Bill 1994 (Cth) (Austl.) 2379, 2381 (1994).
[2019] AUSTRALIAN CORPORATE FOREIGN BRIBERY REFORMS 43

Clearly, the AGD responded to OECD critique when it opted to overhaul

Division 70 Code. However, the OECD-WGB’s criticism concerned Australia’s
relative lack of anti-bribery investigations and prosecutions – not the duty to
criminalize corporate foreign bribery, with which it had pronounced Australia
compliant. When choosing the failure to prevent offense, moreover, the AGD
borrowed a British model, with its OECD influences and echoes of US law. It
appears to have adopted an Anglo-American hybrid, but one with some basis in
international standards as these have changed over time. Probing further, proposed
s. 70.5A CCC Bill resonates with older governmental understandings of the nature
of both “serious” and “corporate” crime, as well as the (perceived) expectations of
multinational companies and more diffuse notions of national reputation and
modern corporate moral hazards.
While these conclusions are not incompatible with the transnational
criminal approach of Boister, they are better illuminated by Halliday and Shaffer’s
theory of transnational legal ordering. An avowedly sociolegal and process-oriented
conception of transnational law avoids the need for analytical matching between
domestic and international rules, such as is complicated by the diversity of sources
on corporate foreign bribery. From the TLO view, the issues become: To what
extend were the OECD and UN Conventions the inspiration for the proposed
Australian rules? To what extent did specific international peer review procedures
prompt Australian action, compared to more diffuse international norms about the
state-of-the-art in domestic corporate foreign bribery legislation?
Next, the core TLO hypothesizes—that transnational law-making is
recursive—has more heuristic power in revealing and unpacking the messy
motivations for reform, which are apparent in the Australian case. A recursivity
approach would problematize the internal processes of decision-making within the
OECD and UN, US and UK, as well as capture factors native to Australia and the
interactions between these “levels” of law-making institutions. It could raise
questions, for example, about how the UK came to adopt the failing to prevent
model; how the OECD or US influenced the British (or visa-versa); and whether
Australia contributed to OECD, US, or UK preferences with its earlier “corporate
culture” rules.112 Other issues that would come to the fore when adopting the TLO
approach would be the medium of influence between the UK, US, and Australia:
Was the OECD the “active ingredient” or an epiphenomenon of colonial histories,
common law traditions, and ongoing political, economic, and security ties? Already
there are reports of anticorruption networks amongst law enforcement officials of
“like-minded countries,” the UK, US, Canada, New Zealand, and Australia.113

112. OECD-WGB, AU-PH2, supra note 58, at ¶ 148 (describing s. 12 Code as “a commendable
development, and well-suited to prosecutions for foreign bribery” and as “ambitious and progressive,
with many elements that are not contained in the criminal legal systems of most other countries, in
particular liability based on a corporate culture”).
113. See, esp., AFP, AMENDED ANNUAL REPORT 2016–17, 59 & 61 (2017); CPDD, ANNUAL
REPORT 2017–18, 53 (2018) (discussing AFP involvement in an International Anti-Corruption
Coordination Centre, and CDPP and AFP participation in an International Foreign Bribery Taskforce).
See, further, National Crime Agency, International Anti-Corruption Coordination Centre (Eng.),
http://www.nationalcrimeagency.gov.uk/about-us/what-we-do/national-economic-crime-centre/
international-anti-corruption-coordination-centre (last visited Dec. 28, 2018).
44 UCI JRNL. OF INT’L, TRANSNATIONAL, & COMP. L. [Vol. 4:26]

Further, TLO theory provides greater scope for considering the role of
non-state actors in transnational criminal justice. On the one hand, the Australian
materials hinted at the role of NGO indictors in shaping perceptions of states as
more or less corrupt.114 On the other, the materials signalled the importance of
perceived business preferences for local laws that reflect emerging de-nationalized
standards. This is not to point to an international commercial conspiracy in
Australia. Nor is it to downplay the role of the state and, within states, the interests
of law-enforcers or more obviously “moral” norm entrepreneurs, like NGOs, in
harmonized or amended laws.115 The claim, rather, is that researchers need to
consider the ways in which business actors contribute to a choice of crime control
and transpose international crime-fighting obligations. 116 Here too a recursive lens
may be apt. For example, which national or international notions of “adequate
procedures” or “effective compliance” have Australian companies internalized?
Where did those conceptions originate and to what extent are such private
transpositions affecting public and/or non-state understandings of “best practice”?
Do they align with, or do they depart from, each other?
Finally, TLO theory is better suited to placing internationally salient law
reforms in their local historical contexts. In the Australian case, a TLO lens would
prompt an examination of Australia’s past failures to enforce its foreign bribery
laws, as well as any future failure of the legislature to pass the CCC Bill into law.
TLO theory affords this additional explanatory power because it is prompts
questions about whether norms have been institutionalized within states and how
those rules have impacted human behavior. TCL theory does conceive of
transnational law as the product of an international process of regime formation
that affects people through domestic law. However, Boister’s account does not lend
itself to a focus on the ways that states implement international rules, or the strength
and weakness of those rules in aligning social practice. My first finding is therefore
that TCL theory is comparatively less able to expose and account for variations in
how states and non-state actors respond to international standards.

B. “Criminal Law” and the Proposed Australian Reforms

My second finding concerns the challenge of applying the concept of
transnational criminal law with respect to the proposed Australian corporate foreign
bribery controls. Is the failing to prevent offense an example of a criminal approach
to behaviour control and, if not, why should this matter?
In recent work, Boister acknowledges that the suppression conventions
also recommend or require non-criminal forms of intervention: civil and
administrative, “preventive and regulatory.”117 Yet his attention remains on the


114. See, generally, Kevin Davis et al., The Local-Global Life of Indicators: Law, Power, and Resistance,
in THE QUIET POWER OF INDICATORS: MEASURING GOVERNANCE, CORRUPTION, AND RULE OF
LAW 1 (Sally Merry, et al. eds., 2015).
115. Senate, ERC Report, supra note 56, at ¶ 4.69, 4.75 (the Senate Economic References
Committee also citing an Australian church group as being in support of the failing to prevent offense
and adequate procedures defense).
116. See, generally, Gregory Shaffer, How Business Shapes Law: A Socio-Legal Framework 42 CONN
L. REV. 1 (2009).
117. BOISTER 2018, supra note 2, at 29.
[2019] AUSTRALIAN CORPORATE FOREIGN BRIBERY REFORMS 45

criminal law—implicitly conceived of as a relatively discrete system of prohibitions,

procedures, and punishments with particular risks of stigmatization and coercion.118
This focus would appear to be justified insofar as all but one of the anticorruption
treaties require states to criminalize certain behaviors.119 The crime control treaties
also authorize incursions into the private sphere and encourage states to reduce
protections for persons subject to international judicial cooperation.120 Be this as it
may, notionally non-criminal measures against corruption may also be a source of
tension or conflict with individual civil liberties.121 The non-criminal features of the
anticorruption treaties may indicate an alternative approach to behavior control.122
The Australian case materials indicate that there are “new” or “non-criminal”
qualities to the failure to prevent offense that are central to its categorization,
historicization, and appraisal.

1. An Example of “New Governance”?

From one angle, the proposed Australian corporate foreign bribery
reforms take a stance on criminalization that is characteristic of “new governance”
approaches to business risk regulation.123 The term “new” (“regulatory” or
“experimental”) governance describes a broad range of public sector “tools”
deployed to motivate private sector self-regulation and cooperation in community
problem-solving.124 Criminal sanctions are not disregarded in this conceptual
framework and mode of intervention, but they are placed towards the tip of a
regulatory pyramid.125 There, they serve to deal with more egregious violations and
to motivate compliance with less coercive enforcement activities.126
Read with the surrounding documents, the CCC Bill recalls this
collaborative and staged approach to governmental intervention. Granted: the
AGD rejects a suggestion that the failing to prevent offense is a “regulatory breach”
that should attract lesser penalties.127 Proposed s. 70.5A is to be made punishable


118. So much is apparent from the general principles as most recently presented: BOISTER
2018, supra note 2, at 422–27.
119. See, e.g., OECD Convention, supra note 9, Arts. 1, 7; UN Convention, supra note 9, Arts.
15–25. The exception is the Civil Law Convention on Corruption, Nov. 4, 1999, 2246 UNTS 3 (2005).
120. See, esp., RADHA IVORY, CORRUPTION, ASSET RECOVERY AND THE PROTECTION OF
PROPERTY IN PUBLIC INTERNATIONAL LAW: THE HUMAN RIGHTS OF BAD GUYS Ch. 4 (2014).
121. Id. at Ch. 5 & 6 (e.g., on non-conviction based confiscation). See, further, JOHAN BOUCHT,
THE LIMITS OF ASSET CONFISCATION: ON THE LEGITIMACY OF EXTENDED APPROPRIATION OF
CRIMINAL PROCEEDS (2017).
122. Ivory 2018, supra note 1, at 427–32.
123. See also, NICHOLAS LORD, REGULATING CORPORATE BRIBERY IN INTERNATIONAL
BUSINESS: ANTI-CORRUPTION IN THE UK AND GERMANY 44
47 (2014) [hereinafter Lord 2014].
124. Orly Lobel, The Renew Deal: The Fall of Regulation and the Rise of Governance in Contemporary
Legal Thought, 89 MINNESOTA L. REV. 342 (2004) [hereinafter Lobel 2004]; Gráinne de Búrca & Joanne
Scott, Introduction: New Governance, Law and Constitutionalism, in LAW AND NEW GOVERNANCE IN THE
EU AND THE US 1, 2–3 (Gráinne de Búrca & Joanne Scott eds., 2006); Orly Lobel, New Governance as
Regulatory Governance, in OXFORD HANDBOOK OF GOVERNANCE 65, 65 (David Levi-Faur ed. 2012)
[hereinafter Lobel 2012].
125. See, e.g., IAN AYES & JOHN BRAITHWAITE, RESPONSIVE REGULATION: TRANSCENDING
THE DEREGULATION DEBATE 35
39 (1992).
126. Id.. See also ARIE FREIBERG, REGULATION IN AUSTRALIA 423 (2017).
127. AGD, LACALC Submission, supra note 55, at 8.
46 UCI JRNL. OF INT’L, TRANSNATIONAL, & COMP. L. [Vol. 4:26]

with a fine equal to that in s. 70.2 Code128 so as to “ensure . . . deterre[nce]” of

willful blindness in companies.129 However, by its terms, s. 70.5A would excuse
corporations that “had in place adequate procedures designed to prevent” foreign
bribery. The government will tell corporations the steps they may take,130 using
“principles-based” guidance rather than a “prescriptive checklist”131 that establishes
a presumption of (non-)compliance.132 The Senate Legal and Constitutional Affairs
Legislation Committee, which examined the Bill in 2018, recommended that
“corporate stakeholders” be permitted to comment on an exposure draft of the
“adequate procedures” guidance.133 The very opportunities for self-governance
justify the no-fault offense,134 the reversal of the burden of proof,135 and the broad
concept of associates.136

2. The Prospects and Pitfalls of New Governance

Considered as an example of new governance approaches, the CCC Bill
could entail regulatory risks and returns other than just those emphasized by Boister.
For its advocates, new governance is an innovative response to socio-economic
complexities, “a third-way vision between unregulated markets and top-down
government controls.”137 Viewed in this way, the Bill provides an adequate
procedures defense as means to motivate compliance. The DPA scheme is an
alternative to punishing past acts of foreign bribery through corporate conviction
and monetary sanctions. The AGD acknowledges that lengthy court battles are an
economic cost for defendant companies, whilst indictments may themselves create
possibly fatal corporate stigmas.138 The CCC Bill offers an alternative to that top-
down enforcement model insofar as proposed s. 70.5A would motivate corporate
harm prevention, and the DPA provisions would allow the deferment of corporate
prosecutions in exchange inter alia for compliance reforms.139 On an appreciative

128. Code, supra note 10, at § 70.2(5); CCC Bill, supra note 12, at Sch. 1, cl. 8, § 70.5A(6).
129. AGD, LACALC Submission, supra note 55, at 8; AGD, LACALC Response (Mar. 2018),
supra note 55, at 3. See also Senate, LACALC Report, supra note 56, at ¶ 2.89.
130. CCC Bill, supra note 12, at Sch. 1, cl. 8, § 70.5B.
131. Addendum to the Explanatory Memorandum, Crimes Legislation Amendment (Combatting Corporate
Crime) Bill 2017 (Cth) (Austl.) ¶ 5; AG, Letter to Sen. Polley, supra note 55, at 10. See also AGD, LACALC
Response (Mar. 2018), supra note 55, at 10, 13–14.
132. AG, Letter to Sen. Polley, supra note 55; AGD, LACALC Response (Mar. 2018), supra note
55, at 13.
133. Senate, LACALC Bill Report, supra note 56, at ¶ 2.93.
134. AGD, Bribery Consultation Paper, supra note 55, at 8.
135. AGD, LACALC Response (Mar. 2018), supra note 55, at 16; CCC Bill EM, supra note 55,
at ¶ 30.
136. AGD, LACALC Response (Mar. 2018), supra note 55, at 6; CCC Bill EM, supra note 55, at
¶ 95. See also Senate, LACALC Bill Report, supra note 56, at ¶ 2.86; Senate, ERC Report, supra note 56, at
xiii.
137. Lobel 2012, supra note 124, at 65.
138. See, e.g., CCC Bill EM, supra note 55, at ¶ 11; AGD, Improving Enforcement Options for Serious
Corporate Crime: Consideration of a Deferred Prosecution Agreements Scheme in Australia: Public Consultation Paper,
9–10 (Mar. 2016) (Austl.), https://www.ag.gov.au/Consultations/Pages/Deferred-prosecution-
agreements-public-consultation.aspx (last visited Jul. 16, 2018) [hereinafter AGD, DPA Consultation
Paper (2016)]. See also Ivory 2018, supra note 1, at 430–31 (with further references).
139. CCC Bill, supra note 12, at Sch. 2, cl. 7.
[2019] AUSTRALIAN CORPORATE FOREIGN BRIBERY REFORMS 47

assessment, this “carrot and stick” approach maximizes opportunities for ethical
expression within for-profit organizations and minimizes the threat to communities
from corrupt enterprises – and overzealous prosecutors. The CCC Bill may thus
respond to the complexity of cross-border corporate regulation in ways that utilize
private resources or expertise, and reduce the costs or risks of enforcement.
Equally, the scheme could be liable to elite manipulation of various sorts,
such as emerges from a contemporary Australian corporate governance inquiry, and
is evident in the international academic literature. Within Australia, there has been
high-level disapproval of conciliatory corporate regulatory practices in the interim
report of the Royal Commission into Misconduct in the Banking, Superannuation,
and Financial Services Industry (hereinafter Hayne Royal Commission).140 Prepared
by a retired High Court judge on the basis of televised witness testimony and major
institutional disclosures, the report does blame financial services entities themselves
for misconduct and poor behavior.141 However, the Commissioner also
provisionally concluded that Australian corporate and prudential regulators had
enabled improper industry practices by being too reticent to prosecute contested
allegations of wrongdoing.142 ASIC, in particular, was criticized for prioritizing the
commercial interest in reaching agreement over the public interest in penalty
proceedings.143
Within the academy, legal sociologists, political scientists, and criminal
lawyers problematize compliance approaches to corporate ethics controls. First,
Lauren Edelman illustrates some of the functional problems with her studies of
American anti-discrimination law. Through a process of “legal endogeneity”, she
argues, corporations have used ambiguous legal provisions to shape judicial
understandings of compliance in their favor.144 She sees a similar process at work
within US corporate criminal liability and ethics rules,145 as have been influential in
the transnational regulations on foreign bribery. Applying her insights, it could be
argued that the defense of “adequate procedures” is overly broad, as it appears in
proposed s. 70.5A CCC Bill. The breadth (ambiguity) of that concept would not
likely be moderated by a guidance that is also general (“principles-based”) and
developed with input from the corporate sector. Moreover, if US practice is any
guide, the concept of adequate procedures will be interpreted, not by courts, as a
rule, but by prosecutors and defendants in negotiations for settlements (DPAs).146
To the extent that DPAs result from executive discretion and a process of

140. THE HON. KENNETH M. HAYNE A.C. Q.C., 1 INTERIM REPORT: ROYAL COMMISSION
INTO MISCONDUCT IN THE BANKING, SUPERANNUATION AND FINANCIAL SERVICES INDUSTRY xix
(Sep. 21, 2018), https://financialservices.royalcommission.gov.au/Documents/interim-report/
interim-report-volume-1.pdf (last visited Dec. 24, 2018).
141. Id. at 268.
142. Id. at 269–70.
143. Id. at 277.
144. LAUREN EDELMAN, WORKING LAW: COURTS, CORPORATIONS, AND SYMBOLIC CIVIL
RIGHTS 12–16 (2016).
145. Id. at 223, 226–29.
146. Kevin T. Abikoff et al., The International Perspective: Lessons from US Authorities’ Enforcement of
the Foreign Corrupt Practices Act, in LISSACK & HORLICK ON BRIBERY 429, ¶ 12.2 (Richard Lissack &
Fiona Horlick eds., 2nd ed. 2014); BRANDON GARRETT, TOO BIG TO JAIL: HOW PROSECUTORS
COMPROMISE WITH CORPORATIONS 6
7 (2014).
48 UCI JRNL. OF INT’L, TRANSNATIONAL, & COMP. L. [Vol. 4:26]

bargaining, one could hypothesize greater potential for prosecutorial

accommodation of corporate preferences. The question would then become: To
what extent is the risk of legal endogeneity offset by prosecutorial codes of practice
and review procedures as proposed in Australia?
Second, deploying Foucault, Baker, Liss, and Sharman configure
compliance activities as a form of governmentality147 or technique of governance
(surveillance).148 Taking this view of the CCC Bill, corporate duties of care shift
some of the state’s responsibility for policing onto organizations, which then
become instruments for monitoring “dangerous” populations of employees,
contractors, and intermediaries, and encouraging, among them, greater self-
control.149 This style of account is not explicitly normative but it does encourage
critical reflection on the “contemporary scheme of things,”150 its underlying
assumptions and effect on social relations. In the case of the CCC Bill, a
“knowledge-power” lens could prompt inquiry into the logic and impact of
corporate foreign bribery laws that favor compliance. Could the failing to prevent
offense reflect a neo-liberal rationality, in that it utilizes profit driven-actors and
market processes to achieve a public ethical good? How do transnational
compliance obligations affect the distribution of risk for wrongdoing between small
and large businesses in exporting states, like Australia? To what extent do privatized
corporate surveillance duties actually enhance economic freedoms and other forms
of autonomy in Australia’s globally southern trading partners?151
Critical versions of criminology have also struck a chord with domestic
criminal lawyers. In this way, third, Andrew Ashworth and Lucia Zedner
problematize the trend away from fault-based punishment towards coercive harm
reduction strategies in England and Wales.152 Such “preventive justice” measures
may have a justification in the need to ensure community safety. However, they
must be carefully reconciled with liberal protective principles, in those authors’
views.153 So far, Ashworth accepts s. 7 Bribery Act 2010, despite the private
performance of public functions and criminalization of omissions that it foresees.154
However, his earlier argumentation (with Zedner) was deployed to query the strict
nature of the failing to prevent offense in at least one academic response to the CCC
Bill when it was issued as a consultation draft.155


147. Carolin Liss & Jason Sharman, Global Corporate Crime-Fighters: Private Transnational Responses
to Piracy and Money Laundering, REV. INT’L POL. ECON. 22 (2015).
148. Larry Catá Backer, Global Panopticism: States, Corporations, and the Governance Effects of
Monitoring Regimes, 15 IND. J. GLOBAL LEGAL STUD. 101, 119–20 (2008).
149. See also LORRAINE MAZEROLLE & JANET RANSLEY, THIRD PARTY POLICING, Ch. 1
(2006).
150. DAVID GARLAND, THE CULTURE OF CONTROL: CRIME AND SOCIAL ORDER IN
CONTEMPORARY SOCIETY 3 (2001).
151. See, e.g., World Bank, De-risking in the Financial Sector, Oct. 6, 2016,
http://www.worldbank.org/en/topic/financialsector/brief/de-risking-in-the-financial-sector, (last
accessed Jan. 3, 2019). See, further Ivory 2018, supra note 1, at 438
39.
152. ANDREW ASHWORTH & LUCIA ZEDNER, PREVENTIVE JUSTICE 13 (2014).
153. Id. at Ch. 11.
154. Andrew Ashworth, Positive Duties, Regulation and the Criminal Sanction 133 L.Q.R. 606 (2017).
155. Professor Simon Bronitt & Ms Zoe Brereton, Submission to the Attorney-General’s Department,
Proposed Amendments to the Foreign Bribery Offence in the Criminal Code Act 1995 (Cth) Public Consultation
Paper, ¶ 5.4 (May 10, 2017) (Austl.), https://www.ag.gov.au/Consultations/Documents/Proposed-
[2019] AUSTRALIAN CORPORATE FOREIGN BRIBERY REFORMS 49

3. Theorizing Non-Criminal Law Reforms

How would TLO theory, in contrast to TCL theory, accommodate these
alternative characterizations and critiques of the Australian failing to prevent
offense? In light of the above, I argue that a TLO approach is better suited to
illuminating the qualities and consequences of the CCC Bill, if it is passed.
The advantage of TLO theory here is its analytical openness. Belonging to
the “contextualist” branch of the New Legal Realist tradition, TLO theory departs
from the “Jamesian/Deweyan” position that “theory must come from the
world.”156 Hence, scholars deploying the TLO approach do not privilege criminal
law as the most important means by which societies approach transnational criminal
problems.157 Further, unlike transnational criminal lawyers, TLO theorists do not
provide a framework for evaluating transnational legal orders as such.158 Instead,
they emphasize the perceived legitimacy of a law as a variable in compliance,159 as
well as the way that “ideological contradictions” within a TLO can spark recursive
processes, which affect the settlement of legal meanings and practices.160
Neutrality vis-à-vis legal taxonomies and fundamental rights enables a
reform, like the CCC Bill, to be both described and appraised from a wider range
of perspectives. British failing to prevent offenses do raise due process issues for
corporations and their workers, even if they are judged acceptable within the
attendant frameworks of international human rights law and criminal procedure.161
Defendants’ rights are also an important constraint on the enforcement of foreign
bribery law in Australia, as a recent High Court case has shown.162 However, as
emerges from the above, there is a range of pragmatic and normative challenges
embedded in the CCC Bill, which TCL’s focus on the criminal law and procedures
may conceal. TLO theory may perform better if it is used to illuminate how
measures affect and are perceived by relevant groups, from corporate compliance
officers and sales personnel to the legal and allied professionals who act as
investigators and advisors. That information could aid reflections on the reasons
for the adoption or rejection of the CCC Bill and, if it is adopted, could help
determine the CCC Act’s “regulatory performance.”163
In addition, TLO and TCL approaches could be combined to probe the
operation—for good or for ill—of anti-foreign bribery compliance systems. Such

amendments-to-the-foreign-bribery-offence-criminal-code-act-1995/Foreign-bribery-submission-
Bronitt-Brereton.pdf (last visited Dec. 24, 2018) (citing Andrew Ashworth & Lucia Zedner, Defending
the Criminal Law: Reflections on the Changing Character of Crime, Procedure, and Sanctions 2 CRIM. LAW &
PHILOSOPHY 21, 33 (2008)).
156. Nourse & Shaffer 2009, supra note 23, at 82, 84.
157. Prabha Kotiswaran, Transnational Criminal Law in a Globalised World: The Case of Trafficking
(in this issue).
158. Halliday & Shaffer 2015a, supra note 8, at 27.
159. Shaffer 2013b, supra note 8, at 34; Halliday & Shaffer 2015b, supra note 8, at 507–08.
160. Halliday & Shaffer 2015a, supra note 8, at 39–40.
161. Liz Campbell, Corporate Liability and the Criminalisation of Failure 12 LAW & FIN. MARKETS
REV. 57, 61–63 (2018).
162. Tony Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions; Donald Galloway (a
pseudonym) v Commonwealth Director of Public Prosecutions; Edmund Hodges (a pseudonym) v Commonwealth Director
of Public Prosecutions; Rick Tucker (a pseudonym) v Commonwealth Director of Public Prosecutions [2018] HCA 53.
163. Lord 2014, supra note 123.
50 UCI JRNL. OF INT’L, TRANSNATIONAL, & COMP. L. [Vol. 4:26]

studies could start, for instance, with questions about how companies subject to the
CCC Bill (or an equivalent law) respond to their duties to prevent, both on paper
and through their internal and external counsel and compliance functions. They
could then continue to probe how firms discharge their quasi-law enforcement
powers (e.g., in trainings and internal investigations) and how those exercises of
power are perceived by employees, agents, and contractors in Australia and a range
of countries that host Australian investments. These findings could illuminate new
opportunities for individual ethical expression or possibilities for domination, when
viewed through a liberal-criminal law or a knowledge-power lens.

CONCLUSION
What do the findings in the Australian case say about the relative strengths
of TCL or TLO theories? Does Boister’s “TCL” theory deliver on its promise to
match explanatory, descriptive, and normative accounts of transnational crime
controls? To the extent that there are difficulties, how does Halliday and Shaffer’s
“TLO” approach correct the problems with the TCL analysis?
In this Article, I explored these questions via a preliminary study of a
proposed corporate foreign bribery reform in Australia. Through a structured
reading of Australian government documents and associated international materials,
I found that the transnational criminal account struggles to capture the complex
history and ambiguous form of the proposed Australian failing to prevent offense.
On the one hand, a corporate crime of omission was not required by the UN or
OECD Conventions nor was it recommended in the reports of those conventions’
monitoring bodies. Rather, the CCC Bill corresponds to “soft” OECD
recommendations and other non-binding or non-public international standards on
corruption. In particular, the Australian proposal would seem to borrow from the
Bribery Act 2010 (UK), and thus to incorporate the outcomes of earlier battles
between the OECD and the British government, as well as US regulatory
preferences. On the other hand, the CCC Bill has some of the hallmarks of a new
governmental approach to corruption control, with its defense for companies with
adequate procedures and its provisions for negotiated corporate settlements
(DPAs). In combination, these measures seem designed to enhance the
Commonwealth’s capacity to prosecute corporate foreign bribery and to engage the
corporate sector as partners in law enforcement. Transnational criminal law theory,
as framed by Boister, would deemphasize the non-criminal features of the recent
Australian proposal and its potential regulatory implications.
This analysis then opened up the way for applying TLO theory in the
Australian case. Halliday and Shaffer’s approach was useful initially for illuminating
the range of actors and factors that seemed to motivate the proposed Australian
reforms. For TLO theory not only points to the role of powerful states and non-
state moral entrepreneurs in diffusing social norms through international networks
and organizations. In addition, it calls for an examination of how agents and
structures interact at multiple levels of governance, and with respect to each other,
in the context of particular governmental decisions. Hence, in the Australian case,
TLO theory draws attention to the processes by which the OECD and UN, US and
UK contributed to the CCC Bill, in addition to the role of Australian officials,
companies, and policy traditions in shaping the drafters’ preferred corporate
[2019] AUSTRALIAN CORPORATE FOREIGN BRIBERY REFORMS 51

criminal liability rules. TLO theory then takes an agnostic stance on the most
relevant features of domestic criminal justice reforms and the possibilities of
appraising those measures in any absolute sense. In the case of Australia, this
agnosticism permits both the new governance and traditional criminal features of
the CCC Bill to come to the fore. A TLO approach would allow the CCC Bill to be
considered for its possibilities, as well as its pitfalls, and from the perspective of a
range of affected parties. In this way, the avowedly sociolegal orientation of TLO
theory exposes the challenge of evaluating rules without assuming particular notions
of legitimacy or “good” crime governance. It also places questions about
rightfulness in the context of questions about a law’s prospects for success or
failure, as is important in the case of Australia’s pending corporate foreign bribery
reforms.