Foreign bribery
Australia implemented the OECD Anti-Bribery Convention in 1999 by enacting anti-bribery and anti-corruption provisions in the Criminal Code.
Under the Criminal Code, it is an offence to directly or indirectly provide or offer someone a benefit that is not legitimately due to that person, with the intention of influencing a foreign public official in the exercise of their duties, in order to obtain or retain business or a business advantage. The maximum penalties under the Criminal Code for foreign bribery offences mirror the domestic bribery offences for bribery of a Commonwealth public official. A 2015 amendment to the foreign bribery provision clarifies that intention to bribe a particular foreign official is not necessary to establish an offence.
In this context, ‘foreign public official’ includes any employee, contractor or official of a foreign government department or agency, a foreign controlled company or a public international organisation; members of a foreign military or police force; or members of the executive, judiciary or magistracy of a foreign country.
Australian authorities can prosecute companies and individuals for such offences provided a sufficient connection can be established between Australia and the entity under investigation. More specifically, the conduct constituting the offence must occur wholly or partly within Australia, or wholly or partially on board an Australian aircraft or ship.
The offence also applies if the conduct is committed wholly outside Australia, but at the time of the offence the person who is alleged to have committed it was an Australian citizen, a resident of Australia or an Australian corporation.
Defences are available in two circumstances:
- where the conduct was lawful in the foreign public official’s country, in the sense that it is permitted or required by written law
- where a payment is a facilitation payment made to expedite or secure the performance of a routine government action of a minor nature, and the payment is of minor value.
‘Routine government action’ excludes a decision about awarding new business, continuing existing business, or the terms of new or existing business. To rely on this exception, companies must demonstrate that they have appropriate recording-keeping procedures in place that require the company to adequately record the value, date, recipient and purpose of any transaction with a foreign public official. Although the Senate Report recommended removing this ‘facilitation payment’ defence, the position remains unsettled, and although the Federal Government has indicated its opposition to facilitation payments it has not directly considered doing so. In the meantime, companies must be cautious and vigilant in relying on facilitation payments as a defence to the foreign bribery offence.
The foreign bribery offence gives rise to obvious compliance risks for companies doing business in high risk environments – in particular where those activities are carried on by agents or through joint venture vehicles. Thorough due diligence and ongoing monitoring – together with the existence of an anti-bribery compliance program – can help minimise risk in this area.