In 2018, Section 17A of the MACC Act 2009 was enacted to introduce a statutory corporate liability offence. It provides that a commercial organisation commits an offence if any person associated with the commercial organisation commits a corrupt act in order to obtain or retain business or an advantage in the conduct of business for the commercial organisation.
A commercial organisation can raise an absolute defence to such a corporate liability offence if it can show that it had “adequate procedures” in place to prevent such persons associated with the commercial organisation from carrying out the corrupt conduct. Pursuant to subsection 17A(5), the Minister shall issue the guidelines as to what constitutes “adequate procedures”.
The Guidelines on Adequate Procedures (“GAP”) to this effect was issued towards the end of 2018 and is aimed at assisting commercial organisations to understand what adequate procedures should be implemented to prevent the occurrence of corrupt practices in their business activities and which could be relied on as a defence to absolve liability under section 17A.
Under GAP, there are five main principles which a commercial organisation may use as the reference points for it’s anti-corruption policies, procedures and controls:
- Top Level Commitment
- Risk Assessment
- Undertake Control Measures
- Systematic Review, Monitoring and Enforcement
- Training and Communication
GAP also appears to widen the term “person associated” to include even nominees, trustees and to a certain extent, even other corporations.
A reading of GAP
makes it clear that all organisations should:
- have a well-crafted anti-corruption compliance programme;
- promote a culture of integrity; ensure the right level of communication on anti-corruption to internal and external parties;
- appoint a risk management officer;
- conduct comprehensive risk assessments;
- create and manage a risk register;
- establish and maintain regular monitoring programmes, internal audits and external audits;
- conduct due diligence on third parties;
- establish reporting channels;
- establish and implement policies and procedures on anti-bribery/corruption e.g. conflicts of interest, gifts, entertainment, hospitality and travel, donations and sponsorship, facilitation payment, financial and non-financial controls, record keeping and enforcement;
- conduct internal and external trainings.