Author: Nyman Gibson Miralis
Subject: Bribery of foreign public officials
Keywords: bribery, foreign public officials, Criminal Code, compliance, anti-bribery enforcement
The federal government has an obligation to take all prudent steps to prevent the bribery of foreign public officials by Australian individuals or organisations, both at home and internationally.
Australia has been a signatory to the Organisation for Economic Cooperation and Development’s Convention on Combating Bribery of Foreign Public Officials in International Business Transactions since 1999.
So how well has Australia been fulfilling its obligations under the convention?
What are Australias Anti-Bribery Obligations?
The terms of the convention stipulate that member countries must create internal legislation which renders it illegal to give or offer a bribe to a foreign public official in order to gain or retain a business advantage. Member states are also required to implement common rules which focus on punishment of individuals and corporations who have committed the crime of bribery.
Australia has complied with the key legislative obligation by implementing Division 70 of the Criminal Code Act 1995.
The terms of the convention also require Australia, mainly through the Australian Federal Police (AFP) and Commonwealth Department of Public Prosecutions (CDPP), to take steps to enforce the legislation and prosecute those charged with the offence of bribery.
Finally, the convention imposes obligations on signatories to be subject to ongoing monitoring and review by the OECD Working Group on Bribery, as well as to provide self-evaluation scores on a regular basis.
Australia’s Anti-bribery Enforcement Historically
The Working Group released its 2015 Data on Enforcement of the Anti-Bribery Convention report in November 2016.
In relation to Australia’s performance, the report showed that, with only 1.1% of the world’s exports, Australia has neither sanctioned nor acquitted any individual or corporation of the crime of bribery of a foreign individual. These statistics are shared with 24 other countries who are parties to the convention, and have never finalised a prosecution.
By comparison, the countries with the highest statistics were the United States, with 67 sanctions of individuals and 37 of corporations, and Germany with 56 individual sanctions (in addition to 171 agreed sanctions) and 12 corporate sanctions.
Since the inception of the convention, Australia has sanctioned one individual for a different offence related to foreign bribery. Although the report does not identify the precise crime, a “different offence related to foreign bribery” could include misuse of company assets, money laundering and false accounting.
Why is Australia Lacking Anti-Bribery Obligations?
The lack of sanctions is largely related to Australia’s low percentage share of world exports. However, the results of a phase 3 evaluation conducted by the OECD in October 2012 provided numerous recommendations for improvement by Australia in its attempts to detect, prosecute and convict individuals or corporations engaging in bribery of foreign public officials.
Australia subsequently fully implemented 16 out of 33 recommendations issued by OECD (and partially implemented an additional nine recommendations). Further recommendations were provided by the Working Group in a document titled Australia: Follow-Up to the Phase 3 Report and Recommendations.
There are a large number of recommendations set out in this report.
Broadly speaking, they are targeted at:
- A review of the way in which Australian law enforcement is prepared to tackle crimes relating to the bribery of foreign public officials, with a particular focus on guilty corporations (as opposed to only individuals).
- Providing education for industry, government and enforcement stakeholders on various elements of the offence.
- Recommending changes to the Criminal Code so that certain sections of the legislation are simplified and clarified, for example by removing the current requirement for an accused party to intend to bribe a foreign official before prosecution can occur.
- Ensuring that related crimes such as false accounting continue to be prosecuted.
- Reviewing penalties imposed for bribery and related crimes, including considering confiscation of assets by those convicted of the crime and implementing a more detailed process relating to plea bargains.
- Creating a publicly available document which provides detailed information on the precise offence of bribery, with a specific view to encouraging whistleblowers. In line with this is the recommendation to implement detailed systems to protect whistleblowers.
Australia appears to be meeting the minimum obligations set out by the convention. But as demonstrated by the numerous recommendations set out in the follow-up report, there is room for improving our already strong compliance with the terms and spirit of the convention.
Nyman Gibson Miralis are experts in foreign bribery matters that involve multiple jurisdictional investigations. If you require assistance, contact one of our expert criminal defence lawyers