Lyla Lindsey
Bribery is illegal in Australia. The Australian government actively works with foreign governments to stamp out bribery and supports ethical business practices. Australia's primary anti-bribery and corruption laws are contained in the Criminal Code Act 1995 (Cth) and the Corporations Act 2001 (Cth). The Criminal Code prohibits both domestic and foreign bribery, making it an offence to provide, offer, or promise to provide a benefit to another person with the intention of influencing a foreign public official in their official duties. The penalties for breaching Australia's anti-bribery and corruption laws are severe and include imprisonment and/or heavy fines.
| Characteristics | Values |
|---|---|
| Anti-bribery laws in Australia | Covered by the Criminal Code Act 1995 (Cth) and the Corporations Act 2001 (Cth) |
| Criminal Code Act 1995 (Cth) | Prohibits both domestic and foreign bribery |
| Corporations Act 2001 (Cth) | Imposes liability on companies for bribery and corruption offences committed by their employees, agents or officers |
| OECD Working Group on Bribery in International Business Transactions | Has called for facilitation payments to be prohibited |
| Australian Federal Police | Investigates possible foreign bribery relating to Australian citizens, residents and companies |
| Australian government | Supports ethical business practices and the prosecution of those who engage in illegal practices |
| Australian anti-bribery and corruption laws | Are complied with to build a stronger business environment in Australia and internationally |
| Bribery offence | Carries a higher maximum penalty compared to offering or providing a corrupting benefit to a Commonwealth public official |
| Foreign bribery offence | Maximum penalty for individuals is 10 years' imprisonment and/or a fine of up to $2.1 million |
| Domestic bribery offence | Maximum penalty is 10 years' imprisonment and/or a fine of up to $1.1 million |
| Corporate offence of failing to prevent foreign bribery | Fine of the greatest amount: 10% of the company's annual turnover in the 12 months preceding the offence, if the value of the benefit cannot be determined |
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What You'll Learn
Foreign bribery laws and enforcement
Australia has a zero-tolerance approach towards foreign bribery and other forms of corruption. The Australian Federal Police (AFP) is responsible for enforcing foreign anti-bribery laws and investigates possible foreign bribery relating to Australian citizens, residents, and companies that occur in Australia and beyond. The AFP works with the Australian Securities and Investments Commission (ASIC) to investigate foreign bribery. The National Anti-Corruption Commission (NACC) is another agency that investigates corruption and has a wide range of investigative powers.
In Australia, bribing a foreign official is an offence under s 70.2 of the Schedule to the Criminal Code. The offence has several elements, including providing, causing, or offering to provide a benefit to another person, and doing so with the intention of improperly influencing a foreign public official to obtain or retain business or personal advantage. The term "foreign public official" is broadly defined and includes any employee or official of a foreign government body, a member of the executive, judiciary, or legislature of a foreign country, and anyone performing official duties under the law.
The offence of bribing a foreign public official carries significant penalties for individuals and companies. Individuals found guilty can face imprisonment for up to 10 years and/or a fine of up to 10,000 penalty units (approximately $3.13 million). Corporations can be fined up to 100,000 penalty units or three times the value gained from the benefit, whichever is greater. If the value cannot be determined, the corporation faces a fine of 10% of its annual turnover. Profits obtained through foreign bribery can be seized and forfeited under the Proceeds of Crime Act 2002.
There are two defence provisions specific to the foreign bribery offence under Australian law. The first is when the conduct is lawful in the foreign public official's country (Section 70.3), and the second is the facilitation payment defence (Section 70.4). However, the OECD Working Group on Bribery in International Business Transactions has recommended prohibiting facilitation payments, and they are illegal in other jurisdictions. Australia has ratified international treaties such as the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention against Corruption (UNCAC), committing to criminalizing bribery of foreign public officials.
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Domestic bribery offences
Australia's primary anti-bribery laws are contained in the Criminal Code Act 1995 (Cth) and the Corporations Act 2001 (Cth). The Criminal Code prohibits both domestic and foreign bribery.
The Criminal Code Act 1995 (Cth) makes it illegal to promise or offer a bribe or corrupting benefit to a Commonwealth public official. It is also illegal to provide or cause to be provided a bribe or corrupting benefit to a Commonwealth public official. Individuals and corporations may be charged with these criminal offenses, and it is not necessary to prove that the defendant knew that the official was a Commonwealth public official.
The Corporations Act 2001 (Cth) imposes liability on companies for bribery and corruption offenses committed by their employees, agents, or officers unless the company can prove it had adequate procedures in place to prevent the conduct. Directors or officers of a company must take proper measures to prevent and detect bribery by employees or other officers. Failure to do so may be a breach of their duties under the Corporations Act 2001 (Cth).
Each Australian State and Territory also has laws prohibiting bribery and corruption of State or Territory public officials or officers. The scope of any private bribery offenses varies between Australian States and Territories. For example, in the State of NSW, the law prohibiting bribery is called the offense of secret commissions. It is an offense when an agent dishonestly accepts money or benefits from a third party in return for departing from their duty to their principal.
The maximum penalty for a domestic bribery offense is 10 years' imprisonment and/or a fine of up to $1.1 million. Companies can face even higher penalties.
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Whistleblowers
In Australia, bribery is illegal and is considered a serious offence. The Australian government has been actively investigating suspected bribery and bringing enforcement action, both within and outside its borders. The Australian Federal Police (AFP) is responsible for enforcing foreign anti-bribery laws and works closely with the corporate regulator, the Australian Securities and Investments Commission (ASIC), to investigate foreign bribery and corruption offences.
The Australian government has recognised the importance of whistleblower protection and is working towards implementing a comprehensive whistleblower protection regime. The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 (Cth) aims to provide whistleblowers with enhanced protections against punitive conduct or recrimination. However, there is still work to be done to ensure that whistleblowers feel safe and supported when reporting misconduct.
To encourage more people to come forward, some have suggested implementing a bounty system that rewards whistleblowers for successful regulator action resulting in penalties. However, this proposal has faced opposition, and it is unlikely to be implemented in Australia. Instead, the government is focusing on increasing incentives for corporations to self-report misconduct and improving internal reporting procedures.
Organisations in Australia must be mindful of whistleblower protections and confidentiality obligations when investigating allegations of bribery and misconduct. They should also ensure that their employees have multiple avenues for raising concerns and that these concerns are taken seriously and properly investigated in accordance with whistleblower laws. By fostering a culture of compliance and encouraging ethical behaviour, organisations can help prevent bribery and corruption within their ranks.
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Penalties for individuals and corporations
In Australia, bribing a foreign official is an offence under s 70.2 of the Schedule to the Criminal Code. The offence carries significant penalties for individuals and corporations.
Penalties for individuals
Individuals found guilty of bribing a foreign official face imprisonment for up to 10 years and/or a fine of up to 10,000 penalty units (approximately $3.13 million). The maximum term of imprisonment and pecuniary penalties for an offence of recklessness are half of those for an intentional offence.
Penalties for corporations
Corporations face a fine of up to 100,000 penalty units or three times the value gained from the benefit, whichever is greater. If the value of the benefit cannot be determined, the corporation faces a fine of 10% of its annual turnover during the 12-month period when the offence took place.
Defences and other considerations
There are two defence options available under Australian law for the offence of bribing a foreign official. These are:
- Conduct lawful in a foreign public official's country (Section 70.3 of the Criminal Code)
- Facilitation payment (Section 70.4 of the Criminal Code)
The "facilitation payment" defence is considered controversial by the OECD Working Group on Bribery in International Business Transactions, which has called for its prohibition. Nevertheless, it remains a valid defence in Australian law.
In addition, companies may be criminally liable for bribery committed by their employees, officers, or agents. Directors or officers of a company who fail to take proper measures to prevent and detect bribery may breach their duties under the Corporations Act 2001. The Australian Federal Police and the corporate regulator ASIC are increasingly focused on enforcing anti-bribery laws and investigating foreign bribery cases.
State and Territory variations
It is important to note that Australia is a federation of six States and two self-governing Territories, and each State and Territory has its own legislation regarding bribery offences and penalties. While all States and Territories criminalise both public and private sector bribery, the specific penalties may vary. For example, the New South Wales (NSW) Crimes Act imposes a maximum imprisonment term of seven years for individuals, while in Tasmania, individuals may face up to 21 years' imprisonment.
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Anti-bribery legislation and compliance
Bribery and corruption are largely state matters in Australia, a federation comprising six states and two self-governing territories. Each of these states and territories criminalises both public and private sector bribery, although the scope of private bribery offences varies. For example, in NSW, the law prohibiting bribery is called the offence of secret commissions. In Victoria, offences carry 10-year maximum terms of imprisonment.
The Australian federal government has laws that prohibit the bribery of federal public officials, as well as foreign public officials. The Criminal Code Act 1995 (Cth) (the "Australian Criminal Code") makes it illegal to promise or offer a bribe or corrupting benefit to a Commonwealth public official. It is also illegal to provide or cause to be provided a bribe or corrupting benefit to a Commonwealth public official.
The Corporations Act 2001 (Cth) imposes liability on companies for bribery and corruption offences committed by their employees, agents, or officers unless the company can prove it had adequate procedures in place to prevent the conduct. Directors or officers of a company must take proper measures to prevent and detect bribery by employees or other officers, or they may breach their duties under the Corporations Act 2001 (Cth).
The Australian Federal Police (AFP) investigates possible foreign bribery relating to Australian citizens, residents, and companies that occur in Australia and beyond. The AFP works with the corporate regulator ASIC, which takes an increasing interest in directors' oversight of bribery and corruption risks.
The penalties for breaching Australia's anti-bribery and corruption laws are severe. For individuals, the maximum penalty for a foreign bribery offence is 10 years' imprisonment and/or a fine of up to $2.1 million. Companies can face even higher penalties, including fines of up to 100,000 penalty units or three times the value gained from the benefit, whichever is greater.
To comply with anti-bribery legislation, organisations should have policies and procedures in place to ensure that compliance is embedded within the organisation's culture. This includes conducting regular risk assessments to identify areas of the business that may be exposed to bribery and corruption risks. If potential bribery or corruption is detected, it is crucial to act promptly, including reporting the matter through the appropriate internal and external channels and preserving any relevant documents or evidence.
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Frequently asked questions
Yes, bribery is illegal in Australia.
Bribery is the offer, payment, or provision of a benefit to someone to influence the performance of a person’s duty and/or to encourage the misuse of his or her authority.
The penalties for breaching Australia's anti-bribery and corruption laws are severe. For individuals, the maximum penalty for a foreign bribery offence is 10 years' imprisonment and/or a fine of up to $2.1 million. For a domestic bribery offence, the maximum penalty is 10 years' imprisonment and/or a fine of up to $1.1 million. Companies can face even higher penalties, including fines of up to 100,000 penalty units or 3 times the value gained from the benefit.
Bribery can take many forms, including offering or providing a corrupting benefit to a public official, such as a government employee or a member of the judiciary. It can also involve providing or promising to provide a benefit to another person that is not legitimately due to them, with the intention of influencing the exercise of a public duty or function.
If you become aware of any potential bribery or corruption, it is crucial to act promptly. This may include reporting the matter through internal channels, such as to the compliance or legal team, and if necessary, to external authorities such as the Australian Federal Police. It is important to preserve any relevant documents or evidence and cooperate with any investigations. Ignoring or covering up potential bribery or corruption can have severe consequences, including criminal liability.
