What is the legal definition of Foreign Bribery under the Criminal Code Act 1995?
Author: Dennis Miralis, partner and criminal defence lawyer.
Under section 70.2 of the Criminal Code Act 1995, it is a criminal offence to bribe a foreign public official. So, what does bribing a foreign public actually mean?
What does bribing a foreign public official actually mean?
Foreign bribery includes providing, or offering to provide, a benefit to a foreign public official. It also includes causing a benefit to be provided or offered to a foreign public official where the benefit is not legitimately due.
The benefit must be intended to influence a foreign public official in the exercise of their official duties, for the purpose of obtaining or retaining business or a business advantage which is not payable legitimately.
The bribe may take the form of cash payments, extravagant gifts, employment for friends and families or holidays.
What are the elements of a foreign bribery offence?
The offence of bribing a foreign public official has three necessary elements which must be proved before the offence can be made out.
Person A is guilty of an offence of bribing a foreign public official if:
- Person A either:
- Provides a benefit to another person; or
- Causes a benefit to be provided to another person; or
- Offers to provide, or promises to provide, a benefit to another person; or
- Causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and
- the benefit is not legitimately due to the other person; and
- Person A does so with the intention of influencing a foreign public official in the exercise of the official’s duties in order to:
- Obtain or retain business; or
- Obtain or retain a business advantage that is not legitimately due to the recipient, or intended recipient, of the business advantage.
Who is a foreign public official for the purposes of the Criminal Code?
The definition of a foreign public official in the Criminal Code is very broad and includes:
- An employee, official or contractor of a foreign government body.
- A member of the executive, judiciary or magistracy of a foreign country.
- A person who performs official duties under foreign law.
- An employee or official of a public international organisation (such as the United Nations).
- Members of the military or police force.
- An individual who holds themselves out to be an authorised intermediary of a foreign public official.
What is the definition of a benefit?
A benefit is not limited to property; it is broadly interpreted as any advantage. This means that a benefit can be non-monetary or intangible.
It is also important to note that the benefit does not need to be provided or offered to the foreign public official directly, it can be provided or offered to another person. For example, a benefit can include the payment of school fees for a foreign public official’s children, or providing employment for a friend or family member of a foreign public official.
When does the offence apply?
The offence for bribing a foreign public official applies in two circumstances.
- Where the conduct constituting the offence occurs wholly or partly in Australia (this includes on an Australian aircraft and ship).
- Where the conduct was committed wholly outside Australia, but at the time of the offence, the person who committed the conduct was either an Australia citizen, an Australian resident or an Australian corporate entity.
It should also be noted that in addition to the Australian legislation, a person or company may be subject to the domestic laws of the foreign country with which they are conducting business transactions.
What are the penalties for an offence of foreign bribery?
If an individual is guilty of the offence of bribing a foreign official, they face up to 10 years imprisonment and a fine of $1.8 million.
If an corporate entity is guilty of the offence of bribing a foreign official, it faces fines of up to either $18 million, three times the value of the benefit gained from the bribe (if the value of the bribe can be ascertained), or three times the value of the entity’s annual turnover (if the value of the bribe cannot be ascertained), whichever is greater.
In addition to these criminal penalties, the benefit obtained by the bribery can be seized and forfeited under proceeds of crime legislation.
What are the defences to foreign bribery?
The Criminal Code 1995 provides two defences to the offence of bribing a foreign official. These are:
- Where the advantage was expressly permitted or required by the written laws that govern the foreign public official
- Where the benefit provided constitutes what is known as a ‘facilitation payment’
This defence applies where the benefit provided is what is known as a facilitation payment.
In order to rely on this defence, the benefit must be recorded, must be of ‘minor value’ and must be offered ‘for the sole or dominant purpose of expediting or securing performance of a routine government action of a minor nature’.
The government is presently reviewing whether to repeal the application of this defence.
Do you need assistance with a foreign bribery case?
Nyman Gibson Miralis has expertise in foreign bribery matters that involve multiple jurisdictional investigations. We have advised individuals who are the subject of bribery investigations in the USA, China, South Korea, Taiwan, and Hong Kong, where there has been a connection to Australia.
Investigations involving bribery are lengthy, complex and raise issues concerning which jurisdiction the offence was committed in, which laws will apply to the investigation and what rights those who are being investigated have under different legal regimes.
In particular the sharing of private and confidential information, whether through formal mutual assistance or police to police co-operation is conducted without due regard to the legal rights of those under investigation.
The governance models concerning how Australia’s law enforcement bodies share such information and the use of information they receive from foreign jurisdictions is underdeveloped and raises significant legal risk for those under investigation.
Nyman Gibson Miralis has significant advisory, investigative and litigation experience, and has worked closely with other law firms and expert consultants to deliver the highest quality legal assistance.