By Mini vandePol, Georgie Farrant, Ryan Hennessey, Angela Sevenson
Primary foreign anti-bribery legislation and enforcement agencies
Criminal Code 1995
Prohibits bribery of foreign and domestic (Cth) public officials
Investigating agency: Australian Federal Police (AFP)
Prosecuting agencies: Commonwealth Director of Public Prosecutions (CDPP) / Australian Government Solicitor (AGS)
Bribing Foreign Public Officials (s70.2)
A person is guilty of an offense if:
- he or she offers, promises, provides or causes to be provided a benefit or advantage to another person;
- that benefit/advantage is not legitimately due to that person – no regard is given to whether the benefit/advantage is customary, its value or any official tolerance; and
- he or she did so with the intention of influencing foreign public officials in the exercise of their official duties, so as to retain or obtain business, or obtain or retain a business advantage that is not legitimately due – no regard is given to whether the business advantage is customary, its value or any official tolerance.
Two defenses to this offense:
- The advantage was permitted or required by the written laws that govern the foreign public official (s70.3).
- The benefit provided constituted a “facilitation payment” – benefit of a minor value offered for the sole or dominant purpose of expediting or securing performance of a routine government action of a minor nature, and this was recorded as soon as possible after the conduct (s70.4).
Corporate liability arises under the Criminal Code if an employee, agent or officer of a body corporate commits an element of the offense while acting within the actual or apparent scope of their authority (Division 12). Evidence of a corporate culture that directed, encouraged, tolerated or led to non-compliance is detrimental.
Extraterritorial application (s70.5) – yes, when conduct occurs:
- wholly or partly within Australia; or
- wholly outside Australia at a time when the offender was an Australian citizen or resident, or a body corporate incorporated in Australia.
Penalties – Criminal or Civil liability
For an individual (s70.2(4)) – imprisonment for up to 10 years, a fine of up to 10,000 penalty units (AUD1.8 million), or both
For bodies corporate (s70.2(5)-(6)) – a fine of up to the greatest of:
- 100,000 penalty units (AUD18 million);
- if the court can determine the value of the benefit, three times the value of that benefit; or
- if the value of the benefit cannot be determined, 10% of the annual turnover of the body corporate and its related bodies corporate during the 12 months ending at the end of the month in which the offense occurred.
Benefits obtained by foreign bribery could potentially be forfeited to the Australian government pursuant to the Proceeds of Crime Act 2002 (Cth).
 In addition to the federal Australian laws, each state and territory in Australia has anti-bribery and anti-corruption laws that are not set out in this guide. Please contact a member of the Australian team for further guidance.
 Benefit includes any advantage and is not limited to property. It may be intangible (e.g., hospitality).
 The prosecution does not have to prove that business, or a business advantage, was actually obtained or retained (s70.2(1A)). The person provided or offered the benefit does not have to be the foreign public official who is intended to be influenced.