"On 24 June 2015, the Commonwealth
Senate voted in favour of an inquiry
into foreign bribery. The Senate will
consider why prosecutions of foreign
bribery offences under Australian
law appear difficult to bring and so
rarely result in conviction. The inquiry
will also provide an opportunity to
examine whether Australian authorities
should have more latitude to negotiate
plea bargains with offenders, in
addition to conventional criminal
prosecutions. Public submissions
closed on 24 August 2015, and
King & Wood Mallesons provided
submissions seeking further guidance
on how to comply with the law as it
currently stands. The inquiry is likely to
lead to legislative changes depending
on the recommendations that result.
A further development is the recent
introduction of accounting records
1. What is bribery?
The offence of bribing a foreign public official
is contained in section 70.2 of the Criminal
Code Act 1995 (Cth) (“Criminal Code”).
Hence, foreign bribery is regulated at a Federal
national level. A person is guilty of an offence
if the following elements are present:
- the person provides, offers or promises
to provide a benefit to another person,
or causes a benefit to be provided to
another person; and
- the benefit is not legitimately due to the
The bribe must be given or offered with
the intention of influencing a public official
in the exercise of his or her duties, to obtain
or retain business or to obtain or retain
a business advantage. That intention need
not be expressed and the benefit given can
be monetary or non-monetary.
Sections 141 and 142 of the Criminal Code
criminalises bribery of domestic public
There is also regulation of domestic bribery
at the State and Territory level. Generally,
domestic bribery involves the corrupt giving,
offering or receiving of inducements or
rewards to or from employees or agents of
companies and individuals or public officials.
The conduct will be “corrupt” only if the
person engaging in it had the intention of
influencing the recipient of the inducement
or reward to show favour.
2. What are the
The Criminal Code provides two defences
against allegations of foreign bribery:
- lawful conduct in the jurisdiction in which
it was made according to the written law
in that jurisdiction; or
- a facilitation payment, or a minor payment
provided in return for expediting or
securing the performance of a ‘routine
government action’, and an appropriate
record of the payment was created. This
exception is under review.
3. What are the sanctions?
The Criminal Code provides significant
penalties for the bribery of foreign and
domestic public officials:
- for individuals, a fine of up to AU$1.8
million or up to ten years’ imprisonment;
- for corporations, a fine which will be the
greatest of AU$18 million, three times
the value of the benefit received by the
corporation and its related entities, or 10%
of the annual turnover of the corporation
and each of its related entities.
In relation to domestic bribery, each State or
Territory varies as to the specific penalties that
may be imposed. Generally, individuals may
be liable for anywhere between three to ten
years’ imprisonment. In relation to bribery by
a company, certain jurisdictions provide for
fines instead of imprisonment whereas other
jurisdictions make no specific provision.
More from the Anti-Bribery and Corruption Guide:
Belgium, China, France, Germany, Hong Kong, Italy, Saudi Arabia, Singapore, Spain, United Arab Emirates and United Kingdom.