Anti-Bribery and Corruption Laws in Australia
Key contacts
jurisdiction
| Source of law | The Criminal Code Act 1995 (Cth) | |||
|---|---|---|---|---|
| Offence | s 70.2: Bribery of a Foreign Public Official Offence: A person commits an offence if they provide or offer to provide a benefit to another person with the intention of improperly influencing 1 a foreign public official 2 in order to obtain or retain business, or a business or personal advantage. 3 | s 70.5A Failure to prevent bribery of foreign public officials A body corporate 4 commits an offence if an associate 5 of the company commits an offence under s 70.2 or engages in conduct outside of Australia which would constitute an offence under s 70.2 for the profit or gain of the corporation unless adequate procedures were in place to prevent the foreign bribery. 6 | Bribery of or Giving Corrupting Benefits to a Commonwealth Public Official s 141.1(1)-(2): Bribery of a Commonwealth Public Official A person commits an offence if they dishonestly provide or offer to provide a benefit to another person with the intention of influencing a Commonwealth public official 7 in the exercise of the official’s duties. 8 s 142.1(1)-(2): Corrupting benefits given to a Commonwealth Public Official A person commits an offence if they dishonestly provide or offer to provide a benefit to another person where the receipt, or expectation of the receipt, of the benefit would tend to influence a Commonwealth public official 9 in the exercise of the official’s duties. 10
| Receiving Bribes or Corrupting Benefits as a Commonwealth Public Official s 141.1(3): Receiving a Bribe A Commonwealth public official commits an offence if they dishonestly ask for, receive, obtain, or agree to receive a benefit for themselves or another person with the intention that the exercise of their duties 11 will be influenced, or of inducing a belief that it will be influenced. s 142.1(3): Receiving a Corrupting Benefit A Commonwealth public official commits an offence if they dishonestly ask for, receive, obtain, or agree to receive a benefit for themselves or another person where the receipt, or expectation of the receipt, of the benefit would tend to influence the exercise of their duties 12 will be influenced. s 142.2(1): Abuse of public office A Commonwealth public official commits an offence where the official exercises any influence as an official, engages in any conduct in the exercise of their duties or uses any information gained as an official 13 with the intention of dishonestly obtaining a benefit for themselves or another person, or causing a detriment to another person. |
| The bribe | ||||
| Is there a presumption that the advantage was given/received corruptly? | No | No | Yes (There is no requirement that the benefit be either corrupt, not legitimately due, improper or dishonest) | Yes (Benefit received corruptly; there is no requirement that the benefit be either corrupt, not legitimately due, improper or dishonest) No(Abuse of public office) |
| Would facilitation payments be caught? | No (See s 70.4) 14 | No (see 70.4) 15 | Yes | Yes |
| Would corporate hospitality be caught? | Yes(Depending on circumstance) | Yes (Depending on circumstance) | Yes (Depending on circumstance) | Yes (Depending on circumstance) |
| Is there any de minimis? | Yes (See s 70.2(2)(b)) | No (As the contravention is predicated on a failure to prevent the occurrence of actual bribery of a foreign official (under s 70.2 or similar offence in an overseas jurisdiction)) | Yes | Yes |
| Does the bribe have to be monetary? | No (“Benefit” includes any advantage and is not limited to property: see Dictionary in the Criminal Code Act for definition of “benefit”) | No (“Benefit” includes any advantage and is not limited to property: see Dictionary in the Criminal Code Act for definition of “benefit”) | No (“Benefit” includes any advantage and is not limited to property: see s 140.1 definition) | No (“Benefit” includes any advantage and is not limited to property: see s 140.1 definition) |
| Public officials | ||||
| Does the offence only apply to bribing public officials? | Yes (Only applies to foreign public officials: see s 70.1 for definition of “foreign public official”) | Yes (Only applies to conduct that is targeted at foreign public officials: see s 70.1 for definition of “foreign public official”) | Yes (Only applies to Commonwealth public officials: see Dictionary in the Criminal Code Act for definition of “Commonwealth public official”) | Yes (Only applies to Commonwealth public officials: see Dictionary in the Criminal Code Act for definition of “Commonwealth public official”, however, note offence under s 142.2(2) for dishonest misuse of information after a person ceases to be a Commonwealth public official) |
| Acts performed outside Australia | ||||
| Can bribery performed outside Australia be caught? | Yes(If the alleged offender is an Australian citizen, resident or body corporate incorporated by or under an Australian law: see s 70.5(1)(b)) 16 | Yes 17 (This offence is predicated on a failure to prevent the occurrence of actual bribery of a foreign official) | Yes 18 | Yes 19 |
| Does the act also need to be illegal in the foreign country of performance? | No 20 (However, it is a defence if there is a “written law in force in the foreign country” that permits or requires the provision of the benefit: see s 70.3) | No 21 (However, it is a defence if there is a “written law in force in the foreign country” that permits or requires the provision of the benefit: see s 70.3) | No | No |
| Who can be liable? | ||||
| Australian nationals? | Yes | No (Will not be primarily liable, as Australian nationals don’t fit within the definition of a body corporate. However, an Australian national may be liable as a secondary contravenor if there is ancillary criminal liability by complicity, incitement or conspiracy 22 | Yes | Yes |
| Australian company? | Yes | Yes | Yes | No (Companies don’t fit within definition of Commonwealth Public Official) |
| Australian partnership (including limited liability partnerships) incorporated? | No (Partnerships not subject to criminal liability. 23 But individual partners could be prosecuted.) | No (Partnerships not subject to criminal liability, 24 and don’t fit within the definition of a body corporate) | No (Partnerships not subject to criminal liability. 25 But individual partners could be prosecuted.) | No (Partnerships not subject to criminal liability. 26 But individual partners could be prosecuted.) |
| Director of Australian company? | No (Will not be primarily liable, unless offence is committed in Australia) If a director aids, abets, counsels or procures the commission of the offence by the company, they are taken to have committed that offence themselves: s 11.2)
| No (Will not be primarily liable, as directors don’t fit within the definition of a body corporate. However, a director may be liable as a secondary contravenor if there is ancillary criminal liability by complicity, incitement or conspiracy 27 ) | Yes 28 | Yes 29 |
| Australian company if the bribe is committed abroad by its foreign subsidiary? | No (Not as a primary contravenor. Parent can be liable as a secondary contravenor if it caused the benefit or an offer of a benefit to be provided by the subsidiary, or if there is ancillary criminal liability by complicity, incitement or conspiracy 30 ) | Yes | Yes | No (Companies don’t fit within definition of Commonwealth Public Official) |
| Foreign subsidiary of a Australian company if the bribe is committed abroad? | No | Yes (If the foreign subsidiary meets the definition of foreign corporation, and the predicate offence of foreign bribery is committed by an associate of the foreign subsidiary rather than the Australian company) | Yes | No (Companies don’t fit within definition of Commonwealth Public Official) |
| Foreign national/company/partnership if bribe is committed in Australia? | Yes | Yes (If the foreign company meets the definition of foreign corporation and the predicate offence of foreign bribery is committed by an associate. However, foreign nationals and partnerships don’t fit within the definition of a body corporate) | Yes | Yes (Foreign national could fall under definition of Commonwealth Public Official. 31 However, companies don’t fit within definition of Commonwealth Public Official) |
| Foreign national domiciled or “ordinarily resident” in Australia if bribe is committed outside Australia ? | Yes | No (Foreign nationals don’t fit within the definition of a body corporate) | Yes | Yes(Foreign national could fall under definition of Commonwealth Public Official. 32 ) |
| Foreign company/partnership if bribe is committed abroad? | No | No (if the foreign subsidiary meets the definition of foreign corporation and the predicate offence of foreign bribery is committed by an associate. However, partnerships don’t fit within the definition of a body corporate) | Yes | No (Companies don’t fit within definition of Commonwealth Public Official) |
| Penalties | ||||
| Penalties include: | Individuals: 33
Corporations: 34 Fine not more than the greatest of: 35
| Corporations Fine not more than the greatest of:
| Bribery Offence: Individuals:
Corporations: Fine not more than the greatest of:
Corrupting Benefits Offence: Individuals:
| Bribery Offence:
Corrupting Benefits Offence/Abuse of Public Office:
|
| Defences | ||||
| Are there any defences available? | Yes (See the facilitation payment defence and written law defences above at ss 70.3 and 70.4; there is a general defence for conduct carried out under duress: see s 10.2) 36 | Yes (there is a general defence if the Australian company provides that it had adequate procedures in place designed to prevent the commission of the offence by the associate: see s 70.5A(5)); there is a general defence for conduct carried out under duress: see s 10.2) 37 | Yes (There is a general defence for conduct carried out under duress: see s 10.2) 38 | Yes (There is a general defence for conduct carried out under duress: see s 10.2) 39 |
