Answer ... In Australia, anti-corruption and anti-bribery laws are divided between commonwealth laws that apply territorially (within Australia), and to some extent extraterritorially (outside Australia), and state and territory laws which apply within each state and territory. This summary will focus on the commonwealth laws, with some references as an example to the laws of the State of New South Wales (as most other state and territory laws are similar).
The commonwealth provisions concerning anti-corruption and anti-bribery are contained in the Commonwealth Criminal Code Act 1995 (Cth). The laws of the State of New South Wales are contained in the Crimes Act 1900 (NSW).
The Criminal Code establishes the offence of foreign bribery. The offence applies to the bribery of a foreign public official outside Australia by an Australian incorporated entity, citizen or resident. A person commits an offence if:
he or she:
- provides or causes to be provided a benefit to another person;
- offers or promises to provide a benefit to another person; or
- causes an offer or a promise of the provision of a benefit to be made to another person;
- the benefit is not legitimately due to the other person; and
- the person does so with the intention of influencing a foreign public official in the exercise of the official’s duties as a foreign public official to obtain or retain business or to obtain or retain a business advantage that is not legitimately due to the recipient, or intended recipient, of the business advantage.
There are separate yet similar offences concerning the bribery or the giving of corrupting benefits to commonwealth public officials.
There are similar offences for the corrupting of state public officials which cover the corrupt receipt of commissions and other corrupt practices.
Answer ... The primary instruments that influence anti-corruption laws in Australia are as follows:
- the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, published by the Organisation for Economic Co-operation and Development (OECD);
- the United Nations Convention against Corruption; and
- the United Nations Convention against Transnational Organised Crime.
These conventions have no legal effect in Australia unless and until their terms are incorporated into domestic law. The terms of the OECD Convention (which prohibits the bribery of foreign public officials) were incorporated into the Criminal Code and form the basis of the statutory foreign bribery offence.
Answer ... There are limited directives or guidance from enforcement authorities in Australia.
In relation to offences against the laws of the commonwealth, the Commonwealth Prosecution Policy, published and administered by the Office of the Commonwealth Director of Public Prosecutions (CDPP), is the most useful guidance from enforcement authorities.
Answer ... The bodies that are primarily responsible for enforcing anti-corruption laws in Australia are:
- the Australian Federal Police (AFP), as the investigator for all potential offences against commonwealth laws;
- the CDPP, as the independent statutory prosecutor (which prosecutes only and does not investigate); and
- insofar as state laws are concerned, the state police forces of each Australian state and territory and, where relevant, a state director of public prosecutions.
In addition to these bodies, the Australian Securities and Investment Commission, as the corporate regulator, works close with the AFP, the Australian Criminal Intelligence Commission (ACIC) (formerly the Australian Crime Commission) and AUSTRAC as the financial transaction reporting agency that enforces Australia’s anti-money laundering and counter-terrorism financing laws.
The powers of the AFP and the police of each state and territory are the usual extensive powers of police authorities to investigate and lay charges in relation to potential criminal offences. The powers of the ACIC are extensive and secretive, and must be exercised subject to its statutory constraints.
The Fraud and Anti-corruption Centre (FACC), hosted by the AFP, coordinates the referral and investigation of bribery and corruption referrals. The FACC is made up of representatives from 10 participating agencies to present a united government response to serious and complex fraud and corruption. The FACC has a Foreign Bribery Panel of Experts that reviews each referral before it proceeds to an investigation. The FACC also liaises with the Criminal Assets Confiscation Taskforce, which deals with the confiscation of assets arising from fraud and corruption crimes.
Answer ... There are limited statistics in relation to anti-corruption procedures in Australia. They are rarely published by Australian regulatory authorities. The most informative information has been published by the OECD in its Phase 1 to 4 Reports on Australia’s compliance with its obligations under the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. In its Phase 4 Report published in December 2017, the OECD identified the investigation and prosecution statistics from the AFP as at August 2017 and made a number of key recommendations that Australia should address, including:
- a focus on the laundering of the proceeds of foreign bribery in the real estate sector; and
- adequate resourcing to enforce foreign bribery laws and proactively pursue criminal charges against companies for foreign bribery.
From 1999, when the foreign bribery offences were introduced into the Criminal Code, until 2011, no prosecutions were commenced under those provisions. The first prosecution commenced in July 2011 was the Securency banknote printing prosecution. The second prosecution concluded in 2017, when three individuals pleaded guilty and were imprisoned. In total, as at August 2019, eight individuals and two companies have pleaded guilty to either a foreign bribery offence, conspiracy to bribe a foreign public official or false accounting in relation to the payment of bribes to foreign public officials. Four other cases were permanently stayed by the High Court of Australia, finding that the ACIC and the AFP had engaged in egregious illegal conduct and an abuse of process against the relevant individuals.
Answer ... A number of shortcomings in Australia’s anti-corruption legislation have been highlighted over the last few years and form part of the Phase 4 Report published by the OECD, referred to above. These include the following:
- The existing foreign bribery offence is complex and hard for prosecutors to establish, with each offence requiring proof of default or nominated physical and fault elements;
- There is no strict liability corporate offence of failure to prevent foreign bribery, such as the UK Section 7 Bribery Act offence;
- There is no deferred prosecution agreement scheme, so voluntary corporate self-reporting is limited; and
- There is no single dedicated enforcement agency (with adequate experience, resources and funding) focused on addressing serious and organised financial crime.