Comparative Guides
Welcome to Mondaq Comparative Guides - your comparative global Q&A guide.
Our Comparative Guides provide an overview of some of the key points of law and practice and allow you to compare regulatory environments and laws across multiple jurisdictions.
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Results: 4 Answers
Anti-Corruption & Bribery
3.
Corruption and bribery
3.1
How are gifts, hospitality and expenses treated in your jurisdiction?
 
Australia
The giving of gifts, hospitality and other expenses is in itself not illegal under Australian law.

Whether a gift, hospitality or expense constitutes a bribe will depend on whether it amounts to a benefit or business advantage that is not legitimately due to the recipient intended to secure a business advantage that is prohibited by, for example, the foreign bribery offence.

Otherwise, so long as any gift, hospitality or expense payment is reasonable and proportionate to the business relationship between the parties, and is unconnected to any discretionary decisions such as the award of a licence or a contract sought by tender, such payments are legal.

For more information about this answer please contact: Robert Wyld from Johnson Winter & Slattery
3.2
How are facilitation payments treated in your jurisdiction?
 
Australia
Facilitation payments are permitted in very limited circumstances.

A facilitation payment involves conduct (offering or giving or receiving a benefit with a value of a minor nature) that is engaged in for the sole or dominant purpose of expediting or securing the performance of a routine government action of a minor nature.

The facilitation offence applies outside Australia only where there is a question of whether a person has bribed a foreign public official. If the bribe constitutes a facilitation payment and the statutory criteria for that payment are satisfied, then the person does not commit the primary foreign bribery offence.

There has been long-standing criticism in Australia and by the Organisation for Economic Co-operation and Development of Australia’s retention of the facilitation payment defence. It remains in the Criminal Code.

For more information about this answer please contact: Robert Wyld from Johnson Winter & Slattery
3.3
How is bribery through intermediaries and other third parties treated in your jurisdiction? Can those third parties be held liable?
 
Australia
Bribery and corruption are prohibited both directly and indirectly. It does not matter whether a bribe is effected directly by a principal or through an intermediary or a third party. Third parties can be held liable under Australian law subject to the jurisdictional requirements of the Criminal Code being satisfied.

It is often the case that a third party will not be charged with the primary offence of bribing a foreign public official, but rather as a conspirator being party to an unlawful agreement to bribe a foreign public official. A third party may, in appropriate circumstances, be subject to extradition from a foreign country to Australia, to be prosecuted in Australia.

Reforms are pending to the Criminal Code which, if and when implemented, will streamline the existing foreign bribery offence, introduce a new strict liability offence of a company failing to prevent foreign bribery by an ‘associate’ (defined broadly). This proposed offence is similar to the UK Section 7 Bribery Act offence, which has been successfully used on a number of occasions in the United Kingdom to give rise to deferred prosecution agreements in order to hold a company responsible for the conduct of subsidiaries or third parties acting for or on its behalf in bribing or corrupting foreign public officials.

For more information about this answer please contact: Robert Wyld from Johnson Winter & Slattery
3.4
Can a company be held liable for bribery committed by management or other employees?
 
Australia
Yes.

For more information about this answer please contact: Robert Wyld from Johnson Winter & Slattery
3.5
Can a company be held liable for bribery committed by domestic or foreign subsidiaries?
 
Australia
Under Australian law, corporate entities are separate legal entities and, absent any effective management control or operative decision making by one company A over the affairs of another company B, company A is not responsible for the conduct of company B. Accordingly, a parent company will not automatically be held responsible for the conduct of its domestic or foreign subsidiaries. Liability will depend upon the conduct of the parent company and of any senior executives of the parent company involved in the day-to-day management or decision-making processes of the domestic or foreign subsidiary, and whether the statutory test for the attribution of corporate criminal liability is satisfied. If they are entirely separate and discrete, however, then the parent entity is unlikely to be liable as the corporate veil, under present Australian law, cannot be pierced.

For more information about this answer please contact: Robert Wyld from Johnson Winter & Slattery
3.6
Post-merger or acquisition, can a successor company be held liable for bribery committed by legacy companies?
 
Australia
For similar reasons to those outlined in question 3.5, a successor company cannot be held liable for the bribery committed by a legacy company, unless the successor company continues conduct undertaken by the legacy company and effectively itself through its management and officers commits the offending conduct, for which it can then be prosecuted. It is not, however, otherwise legally liable for the earlier conduct of any legacy company (although of course, it may have to foot the bill for any investigation and prosecution).

For more information about this answer please contact: Robert Wyld from Johnson Winter & Slattery