Private sector bribery
At the Federal level, there is no offence of private bribery. The Criminal Code makes it an offence for an individual or corporation to intentionally or recklessly facilitate, conceal or disguise in their accounting documents an occurrence of bribery, corruption or loss to a person that was not legitimately incurred. Accounting documents are broadly defined.
The Criminal Code Act 1995 (Cth) provides that a corporation commits the offence if the concealment was undertaken by its officers, employees or agents in the actual or apparent scope of their authority and the requisite mental element is made out (ie. intention or recklessness, which can be proved by corporate culture). The provision binds Australian citizens and corporations and a person engaged to provide services to an Australian corporation and acting in the course of providing those services, wherever those services are provided.
Additionally, the Corporations Act 2001 can apply to bribery because it imposes duties of good faith on directors and officers of corporations (section 181) and prohibits them from improperly using information or their position to gain an advantage for themselves or for someone else (sections 182 and 183). The Competition and Consumer Act 2010 can also apply to bribery because it prohibits conduct such as price fixing, market sharing and other cartel conduct.
State and Territory legislation deals with private sector bribery. It criminalises both corruptly giving rewards to employees or agents, and employees or agents corruptly receiving rewards to show favour in their employer’s or principal’s business. There are also other bribery related offences which deal with conduct of trustees and others who have obligations because of their relative positions of power or close relationships with other parties.
Persons who aid, abet, counsel, procure, solicit or incite the commission of the offences are also guilty of an offence.
The wide definition of “agent” in most State and Territory crimes legislation includes government employees and officials, a police officer or a councillor. This means that State and Territory crimes legislation extend beyond bribery in the private sector and can apply to bribery in respect of State and Territory government officials.
On a Federal level, under the Criminal Code, bribery in the public sector can be broken down into bribery of a foreign public official and bribery of a Commonwealth public official.
Bribery of a foreign public official
Division 70 of the Criminal Code creates an offence of bribery of a foreign public official. For an offence to be committed, there must be an intention to provide a benefit (which includes not only an actual benefit, but also offers or promises to provide a benefit) 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 which is not legitimately due.
The category of persons who are considered to be foreign public officials is broad. It includes employees, contractors, officials or a person in the service of foreign governments and foreign government bodies, employees and individuals who are in the service of a public international organisation or individuals who are authorised intermediaries or hold themselves out to be an authorised intermediary of a foreign public official. A state owned enterprise is a foreign government body and an example of a public international organisation is the United Nations.
It is also an offence for a person or a corporation to attempt to commit the offence or to aid, abet, counsel, procure or incite the commission of the offence or conspire with another to commit the offence of bribing a foreign public official.
The accounting offence outlined above also catches public bribery.
Bribery of a Commonwealth public official
Division 141 of the Criminal Code criminalises bribery in respect of Commonwealth public officials. It deals with both active and passive bribery. It is an offence for any person or corporation to dishonestly provide a benefit or offer or promise to provide a benefit with the intention of influencing a Commonwealth public official in the exercise of that official’s duties. It is also an offence for a person or corporation to attempt to commit the offence or to aid, abet, counsel, procure or incite the commission of the offence or conspire with another to commit the offence of bribing a Commonwealth public official.
Additionally, it is an offence for a Commonwealth public official to dishonestly ask for, receive or agree to receive or obtain a benefit with the intention of being influenced in the exercise of their duties.
The category of persons who are Commonwealth public officials is broad. It includes members of Parliament, administrators of Territories, Commonwealth judicial officers or public servants, persons who perform duties of an office established under the laws of the Commonwealth as well as employees of a Commonwealth Authority or individuals who are contracted to or are an officer or employee of a service provider contracted to the Commonwealth.
Under Division 142 of the Criminal Code there are also offences for giving, requesting, promising or receiving a corrupt benefit in respect of a Commonwealth public official. These involve similar elements to the offence of bribery of a Commonwealth public official except that they do not require an intention to influence. Instead they involve “the receipt or expectation of the receipt of the benefit” which “would tend to influence the public official” in the exercise of the official’s duties. It is also an offence for a person or corporation to attempt to commit the offence or to aid, abet, counsel, procure or incite the commission of the offence or conspire with another to commit the offence.
Most State and Territory laws can apply extra-territorially if the conduct constituting an element of the offence occurs partly in the State or Territory, or it would be an offence if the conduct occurred in the State or Territory or if the conduct occurs outside the State or Territory but has an effect on the State or Territory.
Under Division 70 of the Criminal Code, the offence of bribing a foreign public official applies to Australian citizens and residents, Australian corporations or any person who engages in conduct constituting the offence where that conduct occurs wholly or partly in Australia, on an Australian aircraft or ship, or occurs outside Australia but is committed by an Australian citizen or resident or an Australian corporation. The Attorney General’s written consent is required to prosecute if the person who committed the offence is an Australian resident but not an Australian citizen.
Bribery in respect of a Commonwealth public official under Division 141 is an offence whether the person charged with the offence is an Australian citizen or corporation or whether the conduct constituting the offence occurs in Australia, or whether the result of the conduct constituting the offence occurred in Australia. However, the Attorney General must give written consent to prosecute if the conduct occurs wholly outside Australia and the person is not an Australian citizen or an Australian corporation.
The same wide jurisdiction applies to an offence under Division 142 in respect of corrupting benefits involving a Commonwealth public official.