Bribery and corruption in NSW – section 249B of the Crimes Act 1900 (NSW)
It is a crime to offer someone a bribe (even if the offer is rejected), as well as to actually give them a bribe. A bribe is also sometimes called an ‘undue reward’. It does not have to be a bribe of money, it just has to be a reward or something that will induce a person to act a certain way, e.g. a bottle of wine, or promising someone to buy them a car if they help you out. If you accept a gift or reward which is given to you in order to convince you to act dishonestly or corruptly, then you are also committing an offence. The purpose of the crime is to prevent agents from being encouraged to act to the detriment of or against the interests of their principals.
However, not every gift or reward will be considered a bribe. It is only a bribe if you give a gift or reward to certain people to try and convince them to act dishonestly, and it has to be in relation to your affairs or business. A bribe also has to be given in an attempt to influence that person to act in a certain way that is against the rules, is dishonest or lacks integrity.
The term ‘corruptly’ has been the subject of judicial interpretation and the Court of Criminal Appeal recently explained that secrecy was the corrupting element of the offence. It is the non-disclosure which makes the receipt of the commission or reward corrupt. The intention of the person charged, whether giving or receiving the payment, is the relevant factor in deciding whether the behaviour charged is corrupt.
The legislation divides the crime into two separate categories – 1) agent committing offence and 2) any person committing offence. Each category is then subdivided into two further categories – a) giving or receiving any benefit as an inducement or reward and b) giving or receiving any benefit which would tend to influence the agent to show or not show favour or disfavour. Each category is regarded equally as serious and carries the same maximum penalty of 7 years imprisonment.
The Crown must prove beyond reasonable doubt:
- The accused was an agent
- Who corruptly received, solicited, offered or gave a benefit
- As an inducement or reward for:
- Doing or not doing something or having done or not having done something; or
- Showing or not showing favour or disfavour.
- Which would tend to influence the Agent to show or not show favour or disfavour
- As an inducement or reward for:
- In relation to the affairs or business of the agent’s principal.
The key difference in a) and b) above is that whilst not offering the payment or benefit as an inducement or reward, an offence may also have been committed by making a payment or offer knowing, believing or intending that the payment was one which would tend to influence the agent to show or not show favour or disfavour in relation to the affairs or business of the principal. It is an objective test directed at the intention and not the result.
Bribery and corruption under Commonwealth legislation
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’.
For individuals, the 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.
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. 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 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.
If you need advice, contact one of our criminal law specialists immediately at either our Sydney or our Parramatta offices. We have particular experience in children criminal proceedings. Call 1300 668 484 and arrange a free conference with a solicitor today.