Anti-corruption In Australia

1. Bribery in the home (private to public)

1.1 The Legal Environment

It is prohibited under Australian law, according to Divisions 141 and 142 of the Criminal Code Act 1995 (Cth) (the “Australian Criminal Code”):

to provide or cause to be provided a bribe or corrupting benefit to a Commonwealth public official; or to propose or give a bribe or corrupting benefit to a Commonwealth public official.

Individuals and businesses can be charged with these criminal charges, and there is no requirement that the defendant, whether an individual or a company, knew the official was a Commonwealth public official.

Bribery and corruption of State or Territory public officials or officers are illegal in every Australian state and territory.

It is also illegal for an individual or organization to enable, conceal, or hide in their accounting papers an incident of bribery, corruption, or loss to a person that was not properly incurred (the “False Accounting Offences”) under Part 10.9 of the Australian Criminal Code.

1.2 What does bribery mean?

Bribery needs both intent and action. The act must be dishonestly providing or offering a benefit to a Commonwealth public official (or causing it to be furnished or offered). The goal must be to influence the official in the performance of his or her duties.

Intangible benefits, such as providing hospitality or entertainment, may be provided.

The only distinction between a bribe and a corrupting advantage is that the provision or giving of a corrupting advantage does not necessitate the intent to influence the official. It is required that a public official’s receipt or expectation of receiving a corrupting advantage would influence the official’s performance of his or her duties.

As a result, the offender’s guilt is increased under the bribery offense since the offender must intend to influence the official. When contrasted to the offense of offering or supplying a corrupting benefit to a Commonwealth public official, the maximum penalty is also lower.

The purpose of Australian state and territory laws is similar, however some are directed at various categories of public officials. Specific prohibitions against bribery of elected State officials are one example.

1.3 A Commonwealth public official is a person who works for the Commonwealth.

A lengthy description of Commonwealth public official can be found in the Australian Criminal Code, which includes categories or classifications of people. Members of the defence force, members of the Australian Federal Police, service providers contracted to the Commonwealth, members of statutorily appointed bodies (such as chancellors of universities), and Commonwealth holders of office such as members of Parliament, judicial officers, and the Governor-General are all included in the definition.

Whether workers of publicly owned enterprises in Australia are considered Commonwealth public officials will be determined principally by if they are regarded Commonwealth workers and whether they exercise authorities or execute responsibilities placed on them by Commonwealth law.

State and territory laws in Australia are normally similarly wide, albeit different sorts of State and Territory public officers are subject to various laws.

1.4 Bribery’s Consequences

(a) For Individuals

Bribing a Commonwealth public official can result in a sentence of up to ten years in jail and/or a fine of up to 10,000 Penalty Units (currently equivalent to AUD 8 million).
1 If you offer or provide bribes to a Commonwealth public officer, you could face up to five years in prison and/or a fine of up to 300 Penalty Units (currently equivalent to AUD 54,000).
2 For False Accounting Offenses: if purposeful, 10 years in prison and/or a AUD 8 million fine;3or if reckless, five years in prison and/or a AUD 900,000 fine.

a) Business entities

Bribing a Commonwealth public officer carries a maximum penalty of 100,000 Penalty Units (currently AUD 18 million); 5 times the value of the unlawful gain; or 10% of the corporation’s annual turnover in the year preceding the bribe.
A fine of up to 1,500 Penalty Units can be imposed if you provide or provide corrupting advantages to a Commonwealth public official (currently equivalent to AUD 270,000).
The Australian Criminal Code holds companies liable when employees’ actions were within the scope of their employment and the board of directors or a high-ranking management official knowingly or recklessly permitted or carried out the offense; a corporate culture tolerated the offense; or the organization failed to create a corporate culture that required compliance with the law.
In the case of False Accounting Offenses, the greater of a AUD 18 million fine,7 3 times the value of the benefit, or 10% of the body corporate’s annual turnover; or, if reckless, the greater of a AUD 9 million fine,8 1.5 times the value of the benefit, or 5% of the body corporate’s annual turnover.

1.5 Contributions from politics

Part XX of the Commonwealth Electoral Act 1918 regulates contributions to political parties and affiliated organisations (Cth). Contributions to political parties are permitted in general, but must be disclosed if they exceed AUD 13,200 in a calendar year (effective 1 July 2016 up to 30 June 2017). The threshold is tied to the official measure of inflation, thus it rises every year.

Individual States and Territories have their own set of rules. These are frequently significantly more directive. For example, in New South Wales (NSW), total annual donations exceeding specific restrictions are prohibited, which ranged from AUD 2,600 to AUD 5,900 per year from July 1, 2016 to June 30, 2017, depending on the individual or entity to whom the donation was made.

1.6 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)

Although there are no numeric constraints on hospitality expenses in the Australian Criminal Code, they are particularly included in the idea of a “benefit” for the purposes of bribery or corrupting advantages.

2. Bribery in the home (private to private)

2.1 The Legal Environment

In Australia, there is no such thing as a Commonwealth private to private bribery violation. Private bribes, kickbacks, and covert commissions, on the other hand, are illegal in various Australian states and territories. The Crimes Act 1900 (NSW) (the “Crimes Act”), for example, governs this in the state of NSW. The False Accounting Offenses mentioned in Section 1.1 could also apply.

2.2 What is bribery in the private sector?

The scope of any private bribery offenses differs between Australian States and Territories, however in NSW, for example, the bribery statute is known as the offense of secret commissions. It is unethical for an agent to take money or benefits from a third party in exchange for failing to perform a duty owed to the agency’s principal.

2.3 Private bribery’s ramifications

The fines in question are those imposed by the state of New South Wales. Individuals implicated could face up to seven years in prison, a fine of up to 1,000 Penalty Units (currently AUD 110,000), and/or return of the benefit obtained.

It’s worth noting that the punishments in other states are more severe. Victorian offenses, for example, entail maximum sentences of ten years in prison.

2.4 Hospitality expenses are subject to a limit (gifts, travel, meals, entertainment, among others)

Although the Crimes Act does not set quantitative or qualitative limits on hospitality expenses, those forms of perks may be covered by the offenses.

3. Foreign public officials that are corrupt

3.1 The Legal Environment

Bribing a foreign public officer is prohibited under Australian law, according to Division 70 of the Criminal Code. There are only a few defenses included. The facilitation payment defense is one of the few remaining such defenses throughout the world, though with significant limitations. False Accounting Offenses, as defined in Section 1.1, also apply.

3.2 Definition of foreign public officials’ corruption

The elements of bribing a foreign public official are similar to those of bribing a Commonwealth public official, with the exception of the identity of the target or recipient of the bribe. However, there is an extra aspect to the foreign public official violation, which is indicated in italics in the next paragraph.

Bribing a foreign public officer is illegal in Australia because it needs both intent and action. The act must involve dishonestly providing or offering a benefit to a foreign public official (or causing it to be delivered or offered). The goal must be to influence the official in the performance of his or her duties in order to achieve or retain an unfair business advantage.