Answer ... Domestic bribery laws in Australia can be classified as:
- laws prohibiting bribery involving commonwealth and foreign public officials;
- laws prohibiting bribery involving state government public officials; and
- laws prohibiting bribery involving local government public officials.
The Criminal Code deals with offences relating to domestic bribery of a commonwealth public official. The offences include:
- the giving of a bribe or corrupting benefit;
- the receipt of a bribe or corruptive benefit; and
- abuse of public office.
For the offence of giving or receiving a corrupting benefit, it is immaterial whether the benefit is in the nature of a reward.
The New South Wales Crimes Act prohibits the giving or receipt of any benefit as an inducement or reward for the doing or not doing of something or the showing or not showing of a favour or disfavour in relation to the business affairs of a person (any person, in private or public). Other states and territories have similar offences.
Answer ... The definitions of ‘foreign public official’, ‘business advantage’, ‘foreign government body’, ‘foreign public enterprise’ and ‘public international organisation’ in the Criminal Code are very broad. The definitions encompass government-owned or controlled entities, including persons officially employed by a government and those persons who perform work for a government body or hold themselves out to be authorised as an official or who may act formally or informally in accordance with the directions, instructions or wishes of a government.
Answer ... There is no express offence of ‘private corruption’ in Australia. The Criminal Code creates offences for the offering, giving or receipt of a bribe to or by a commonwealth public official where the benefit is intended to influence the public official in the exercise of his or her duties as a public official. In New South Wales, there are a range of fraud and corruption-related offences, which include corrupting conduct that apply irrespective of whether the persons involved are public officials.
Answer ... The definition of what constitutes a ‘bribe’ is broad. In the Criminal Code, the nature of what is or is not a bribe under the foreign bribery offence is defined as a ‘benefit” or “business advantage” that is not “legitimately due” to the person receiving the benefit or advantage. The nature of any benefit that might arise can include any advantage and is not limited to property. It can include any type of financial or non-financial benefit involving any amount of money or thing of value. A ‘business advantage’ is defined as “an advantage in the conduct of business”. Whether something is or is not legitimately due is problematic, as there is no definition of this phrase and it can often turn upon what is or is not legitimate in a foreign jurisdiction, which invariably complicates prosecutions.
Answer ... The criminal offences that most commonly apply to bribery or corruption conduct include the following:
- bribery of a foreign public official;
- bribery of a domestic public official;
- the accessorial (or secondary) offences of conspiracy, aiding and abetting or complicity in the primary offence conduct;
- money laundering;
- false accounting or false or misleading documents under state criminal laws, or the false or reckless dealing with accounting documents under the Criminal Code; and
- breach of statutory director and officer duties.
Answer ... Yes. Under Sections 12.1 to 12.6 of the Criminal Code, corporate criminal liability can be attributed to a company. Physical elements are attributed to a company in circumstances in which an employee, agent or officer of a company commits the physical element when acting within the actual or apparent scope of his or her employment or authority. Fault elements are attributed to a company that “expressly, tacitly or impliedly authorised or permitted the commission of the offence”.
In the corruption prosecutions that have occurred in Australia to date, both companies and individuals have been prosecuted.
Answer ... Yes, foreign companies can be prosecuted under Australia’s anti-corruption legislation to the extent that a foreign company or directors, executives or officers of a foreign company engaged in conduct that had a geographic connection with Australia, or were otherwise part of conduct outside Australia that involved an Australian company, citizen or resident.
To the extent that a foreign company is to be prosecuted for conduct that took place wholly outside Australia, consent must be secured from the commonwealth attorney general. This consent is likely to be given absent special or exceptional circumstances.
Answer ... Yes.
As a general default rule, Australian criminal laws are confined to Australia and do not operate with any extraterritorial effect, unless legislation permits an extraterritorial reach.
The Criminal Code sets out the extraterritorial effect of the foreign bribery offences. So long as the conduct occurs partly in Australia or partly on board an Australian aircraft or an Australian ship, charges can be brought. If conduct occurs wholly outside Australia and a person of interest is not an Australian company, citizen or resident, consent to prosecute must be obtained from the commonwealth attorney general.