Author: Nyman Gibson Miralis

Subject: Bribery Laws in Australia

Keywords: commonwealth laws, state laws, Commonwealth Criminal Code, Commonwealth Public Official, Foreign Public Official, facilitation payments  

 

Bribery laws in Australia are complex. This brief guide is designed to provide an overview of the Commonwealth and state laws governing bribery and the penalties for breaking them.

 

What are the Governing Laws under the Commonwealth and State?

The Commonwealth Criminal Code is the law criminalising foreign bribery in Australia. A variety of state and territory laws also criminalise bribery.

The offences apply to Australian citizens, residents, and companies, while the laws with respect to bribing a Commonwealth Public Official or an agent apply to any individual and company.

 

Bribing a Foreign Public Official

It is an offence to provide a benefit to another person, cause a benefit to be provided to another person or offer to provide a promise to provide a benefit to another person, when the benefit is not legitimately due to that person. It is an offence when and the person offering the benefit does so with the intention of influencing a Foreign Public Official in order to retain or obtain business or a business advantage.

A “benefit” includes any advantage and is not limited to property.

A “business advantage” includes any advantage in the conduct of business.

 

Who is a “foreign public official”?

A “Foreign Public Official” includes:

  • An employee or official of or an individual who performs work for, a foreign government body.
  • An individual who holds/performs the duties of an appointment, office or position under a law (or created by custom or convention) of a foreign country or part of a foreign country.
  • An individual who is otherwise in the service of a foreign government body (including a member of a military or police force).
  • An member of the executive, judiciary or magistracy of a foreign country or part of a foreign country;
  • An employee of, or an individual who performs work for a public international organisation.
  • A member/officer of the legislature of a foreign country or of a part of a foreign country.
  • An individual who is an authorised intermediary of a foreign public official or holds himself or herself out to be the authorised intermediary of a foreign public official .

 

What does bribing a “Commonwealth Public Official” mean?

It is also an offence to bribe a Commonwealth Public Official in the same way it is to bribe a Foreign Public Official, except that the person must dishonestLy provide the benefit, cause the benefit to be provided or offer to provide or promise to provide the benefit.

There is no requirement that the act be done for the purpose of retaining or obtaining a business advantage. There is also a separate similar offence without an intention element; instead it must be that the receipt or expectation of the receipt of the benefit would tend to influence a Commonwealth Public Official.

It is not necessary to prove that the defendant knew that the official was a Commonwealth Public Official or that the duties were duties as a Commonwealth Pubic Official.

 

Who is a Commonwealth Public Official?

The list of who may be considered a “Commonwealth Public Official” is extensive and includes ministers, members of the Australian Federal Police and Defence Force, an individual who holds or performs the duties of an office established by or under a law of the Commonwealth and an officer or employee of a Commonwealth authority.

 

Corruptly giving/offering benefits to agents

State and Territory laws criminalise the corrupt giving or offering of an inducement or reward to an agent for doing or not doing something in relation to the affairs of the agent’s principles. Individuals who aid, abet, counsel, procure, solicit or incite the commission of these offences are also guilty of an offence.

 

What are the maximum penalties for individuals and companies?

Under the Commonwealth Criminal Code:

  • As at January 2014, the maximum penalty for individuals is $1.7 million (AUD) and / or 10 years imprisonment.
  • As at January 2014 , the maximum penalty for companies is the greater of: $17 million, three times the value of the benefit or if the value of the benefit cannot be determined, the penalty is 10% of the company’s annual turnover during the period of 12 months ending at the end of the month in which the offence occurred

Under state and territory laws:

  • The maximum penalty differs between each state and territory, but includes substantial fines for individuals and companies and/or imprisonment for individuals up to 10 years.

 

Extra-territorial application

The Commonwealth Criminal Code has extra-territorial application.

State and territory laws may have extra-territorial application so long as there is a real and substantial link between the act and the state.

 

How does a company liability operate under the Commonwealth Criminal Code?

Under the Commonwealth Criminal Code:

The act specifically provides that if “intention” is an element in an offence, that element must be attributed to a body corporate that “expressly, tacitly or impliedly authorised or permitted the commission of the offence”.  Authorisation or permission may be established by:

  • Proving that the company’s board of directors intentionally carried out the relevant conduct or expressly, tacitly or impliedly authorised or permitted the commission of the offence;
  • Proving that a high managerial agent of the company intentionally engaged in the conduct or expressly, tacitly or impliedly authorised or permitted the commission of the offence;
  • Proving that a corporate culture existed within a company that directed, encouraged, tolerated or led to non-compliance with that law.
  • Proving that the company failed to create and maintain a corporate culture that required compliance with that law.

It is a defence if the company proves that it exercised due diligence to prevent the conduct or the authorisation or permission. A director or officer, however, cannot be held liable for an employee’s actions unless the director or other officer aids, abets, counsels or procures or incites the commission of the offence by that employee.

Significantly, the director or officer msut have intended that his or her conduct would have this effect and he or she will not be guilty for simply failing to engender an appropriate corporate culture.

Under state and territory laws:

  • A corporation/employer may be liable, especially if the conduct occurred in the course of the employee’s employment, meaning that the conduct is sufficiently connected to the conduct authorised by the employer.

 

What are facilitation payments and are they lawful?

Facilitation payments are permitted in Australia, provided that:

  • The benefit obtained is of a minor nature.
  • The person making the payment was doing so to expedite or secure the performance of a “routine government action” of a minor nature.
  • The person making the payment made a record of the conduct as soon as practicable after the payment was made and has kept that record.

A “routine government action” is an action of a Foreign Public Official that:

  • Is ordinarily and commonly performed by the official;
  • Is covered by any of the following:
    • Granting a permit, licence or other official document that qualifies a person to do business in a foreign country or in part of a foreign country;
    • Processing government papers such as a visa or work permit;
    • Providing police protection or mail collection or delivery;
    • Scheduling inspections associated with contract performance or related to the transit of goods;
    • Scheduling inspections associated with contract performance or related to the transit of goods;
    • Providing telecommunications services, power or water;
    • Loading and unloading cargo;
    • Protecting perishable products or commodities from deteriorations or; any other action of a similar nature; and
  • Does not involve or encourage a decision about whether to award new business, whether to continue existing business with a particular person or the terms of new business or existing business.

 

Are you under investigation or facing charges?

Nyman Gibson Miralis has acquired expertise in bribery investigations that are being conducted in multiple jurisdictions. As experts in international / transnational criminal law we can provide our clients with the full benefits of our deep relationships with local lawyers in foreign jurisdictions who are also experts, including in the USA, Europe and Asia.

Our criminal litigation experience derived from advising and acting in bribery matters ensures that we are able to  provide unique insights and strategic advice on critical issues, such as the obtaining of information through the mutual assistance requests, under multilateral and bilateral treaties Australia may have with other nations, the admissibility of foreign evidence into proceedings in Australia and the restraining of the use of evidence obtained in Australia, into foreign investigations.

 

Common issues that may arise in bribery investigations include:

  1. Foreign jurisdictions may not observe the right to silence,
  2. Foreign jurisdictions may have different a criminal justice system which may not be accusatorial and adversarial like Australia’s criminal justice system
  3. Foreign jurisdictions may treat how evidence was obtained differently including its admissibility in court  where the  evidence is alleged to have  been obtained illegally and improperly
  4. Foreign jurisdictions may have different privacy regimes which treat the obtaining of private data and the sharing of such data differently to Australia
  5. Foreign jurisdictions may have different regulatory bodies which can compel documents and use those in bribery investigations in a way which may differ from Australia
  6. Foreign jurisdictions have different maximum penalties for bribery offences and different sentencing regimes.
  7. Foreign jurisdictions may provide the police and investigating officials with different powers to investigate, including the obtaining of search warrants, telephone intercepts, surveillance devices and induced statements.

These differences must be identified early and carefully managed so that any unfair prejudice that may be created to either an individual or a corporate entity can be strategically contained or removed in the investigation phase in order to protect the integrity of the investigation and the right to a fair trial. Nyman Gibson Miralis’s  expertise in cross border investigations allows us to  immediately identify these issues and provide strategic advice to ensure that any improper sharing of data, records, statements  and documents is brought to the attention of the courts and is the subject of proceedings to prohibit and prevent this from occurring.

 

Why do those exposed to foreign bribery investigations require litigators with experience in defending and protecting individuals rights?

The governance model concerning the sharing of information exposes those under investigation for bribery offences to double jeopardy as well as  the risks of jurisdiction shopping,  where law enforcement agencies determine which jurisdiction bests suits their objectives to try a particular case.

Presently the rights of individual who are the subject of multiple exposures to parallel criminal bribery charges (which may include extradition) are vulnerable to being extradited and sentenced in countries which have significantly higher maximum penalties than Australia.

The transnational framework has been designed to assist law enforcement co-operation, often at the expense of considerations concerning the human rights of those under investigation.

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