The Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2015 (Cth) commenced on 1 March 2016.

Amongst other things, the Act amends the Commonwealth Criminal Code to introduce new false accounting offences relating to corporate involvement in bribery (including foreign bribery). The offences apply both within Australia and overseas, in prescribed circumstances where constitutional power permits.

Intentional false dealing
The first of the two new offences, set out in new section 490.1 of the Criminal Code, applies where a person makes, alters, destroys or conceals an accounting document, or where a person fails to make or alter an accounting document that the person is under a duty to make or alter, with the intention that the person’s conduct would facilitate, conceal or disguise the receiving or giving of a benefit that is not legitimately due, or a loss that is not legitimately incurred.

The offence imposes a maximum penalty for an individual of 10 years’ imprisonment, a fine of 10 000 penalty units ($1.8 million), or both.

The maximum penalty for a body corporate is the greater of: (a) 100 000 penalty units ($18 million); (b) (where the court can determine the value of the benefit) three times the value of the benefit obtained by the body corporate and any related body corporate from the offence; and (c) (where the court cannot determine the value of the benefit) 10 per cent of the annual turnover of the body corporate during the 12 months ending at the end of the month during which the conduct constituting the offence occurred.

Reckless false dealing
The second offence, set out in new section 490.2, applies in the same circumstances as the first offence, but where the person is reckless as to whether the benefit or loss would arise.

For the second offence, a lower fault element of recklessness applies and therefore the penalties are half of the penalties for the offence at section 490.1.

Accounting documents are defined as:

• any account; or
• any record or document made or required for any accounting purpose; or
• any register under the Corporations Act 2001, or any financial report or financial records within the meaning of that Act.

The accounting documents need not be in Australia.

The offences apply to any Australian corporation as well as any employees or persons engaged to do work for the corporation, whether within Australia or outside Australia, and Australian public officials.