Bribery and Corruption under Commonwealth Legislation

What is the law relating to bribery in Australia?

The Criminal Code Act 1995 (Cth) contains offences which catch corrupt conduct that might occur outside Australia, as well as conduct alleged to have occurred inside Australia.

Section 70 of the Criminal Code makes it an offence to provide, cause to provide or offer a benefit to another person that is not legitimately due to that person with the intention of influencing a foreign public official in order to obtain or retain a business advantage. Similarly, section 141 provides for the essentially the same offence where the intention is to influence a Commonwealth public official.

Whether or not a benefit or business advantage is legitimately due is determined without regard to customs, the value or any official tolerance. Benefit is also broadly defined to include ‘any advantage’.

 

What are the penalties for bribery?

For individuals, both offences carry a maximum penalty of 10 years imprisonment and/or $1.7 million fine.

For corporations, the maximum penalty is the greater of a fine of up to $17 million, three times the value of the benefit (if it can be determined) or (if the value cannot be determined) 10% of the annual turnover of the company during a 12 months period ending at the end of the month in which the offending conduct occurred.

 

Can I be prosecuted for bribery for offences committed overseas?

One of the distinguishing features of the Commonwealth legislation is the territorial provisions. The offence has been designed to cover conduct alleged to have occurred wholly or partly in Australia or on board an Australia aircraft or ship but also conduct that occurs wholly outside Australia where the accused is an Australian citizen or resident, or the corporation is incorporated in Australia.

Offences of these kinds frequently involve a large and complex prosecution case. Agents can include employees, contractors, company directors, board members etc. Often, the circumstances giving rise to an allegation of corrupt conduct involve professional relationships which have formed over many years.

For further information, go to our foreign bribery and corruption page.

 

Is every incentive considered a bribe?

Commissions and bonuses are a common and legitimate part of business dealings, beneficial not only to efficiency and productivity of a company but also the remuneration and reward to an agent. The lines are only further blurred in today’s society by the use of the internet which has made cross-jurisdictional and transnational business dealings the norm. It is therefore often a fine line in deciphering where the corrupt conduct lies. The importance of obtaining expert legal advice as early as possible cannot be overstated.