jurisdiction

Australia
Source of lawThe Criminal Code Act 1995 (Cth) 
Offence 

Section 70.2: Bribery of a Foreign Public Official Offence:  

A person commits an offence if they provide or offer to provide a benefit to another person that is not legitimately due to the other person, with the intention of influencing a foreign public official 1  in the exercise of the official’s duties  2  in order to obtain or retain business or obtain or retain a business advantage that is not legitimately due to the recipient. 

Bribery of or Giving Corrupting Benefits to a Commonwealth Public Official 

Section 141.1(1)-(2): Bribery of a Commonwealth Public Official 

A person commits an offence if they provide or offer to provide a benefit to another person with the intention of influencing a Commonwealth public official  3   in the exercise of the official’s duties.  4  

Section 142.1(1)-(2): Corrupting benefits given to a Commonwealth Public Official 

A person commits an offence if they provide or offer to provide a benefit to another person where the receipt, or expectation of the receipt, of the benefit would tend to influence a Commonwealth public official 5  in the exercise of the official’s duties.  6

 

Receiving Bribes or Corrupting Benefits as a Commonwealth Public Official 

Section 141.1(3): Receiving a Bribe 

A Commonwealth public official commits an offence if they dishonestly ask for, receive, obtain, or agree to receive a benefit for themselves or another person with the intention that the exercise of their duties 7 will be influenced, or of inducing a belief that it will be influenced. 

Section 142.1(3): Receiving a Corrupting Benefit 

A Commonwealth public official commits an offence if they dishonestly ask for, receive, obtain, or agree to receive a benefit for themselves or another person where the receipt, or expectation of the receipt, of the benefit would tend to influence the exercise of their duties 8  will be influenced. 

Section 142.3(1): Abuse of public office 

A Commonwealth public official commits an offence where the official exercises any influence as an official, engages in any conduct in the exercise of their duties or uses any information gained as an official 9 with the intention of dishonestly obtaining a benefit for themselves or another person, or causing a detriment to another person. 

The bribe    
Is there a presumption that the advantage was given/received corruptly? NoYes (There is no requirement that the benefit be either corrupt, not legitimately due, improper or dishonest) No
Would facilitation payments be caught? No (See s 70.4) 10 YesYes
Would corporate hospitality be caught? Yes(Depending on circumstance) Yes (Depending on circumstance) Yes  (Depending on circumstance) 
Is there any de minimis? Yes  (See s 70.2(2)(b)) YesYes
Does the bribe have to be monetary? No (“Benefit” includes any advantage and is not limited to property: see s 70.1 definitions) No (“Benefit” includes any advantage and is not limited to property: see s 140.1 definition) No (“Benefit” includes any advantage and is not limited to property: see s 140.1 definition) 
Public officials    
Does the offence only apply to bribing public officials? Yes  (Only applies to foreign public officials: see s 70.1 for definition of “foreign public official”) Yes (Only applies to Commonwealth public officials: see Dictionary in the Criminal Code Act for definition of “Commonwealth public official”) Yes  (Only applies to Commonwealth public officials: see Dictionary in the Criminal Code Act for definition of “Commonwealth public official”, however, note offence under s 142.2(2) for dishonest misuse of information) 
Acts performed outside Australia     
Can bribery performed outside Australia be caught? Yes(If the alleged offender is an Australian citizen, resident or body corporate incorporated by or under an Australian law: see s 70.5(1)(b))  11 Yes  12 Yes 13
Does the act also need to be illegal in the foreign country of performance? No 14  (However, it is a defence if there is a “written law in force in the foreign country” that permits or requires the provision of the benefit: see s 70.3) NoNo
Who can be liable?    
Australian nationals? Yes YesYes
Australian company? Yes YesNo (Companies don’t fit within definition of Commonwealth Public Official) 
Australian partnership (including limited liability partnerships) incorporated? No (Partnerships not subject to criminal liability. 15  But individual partners could be prosecuted.) No (Partnerships not subject to criminal liability. 16 But individual partners could be prosecuted.) No (Partnerships not subject to criminal liability. 17 But individual partners could be prosecuted.) 
Director of Australian company? 

No (Will not be primarily liable, unless offence is committed in Australia)  

If a director aids, abets, counsels or procures the commission of the offence by the company, they are taken to have committed that offence themselves. 

 

Yes  18 Yes  19
Australian company if the bribe is committed abroad by its foreign subsidiary? No (Not as a primary contravenor.  Parent can be liable as a secondary contravenor if it caused the benefit or an offer of a benefit to be provided by the subsidiary, or if there is ancillary criminal liability by complicity, incitement or conspiracy 20 ) Yes No (Companies don’t fit within definition of Commonwealth Public Official) 
Foreign subsidiary of a Australian company if the bribe is committed abroad? NoYesNo (Companies don’t fit within definition of Commonwealth Public Official) 
Foreign national/company/partnership if bribe is committed in Australia? Yes YesYes (Foreign national could fall under definition of Commonwealth Public Official. 21  However, Companies don’t fit within definition of Commonwealth Public Official) 
Foreign national domiciled or “ordinarily resident” in Australia if bribe is committed outside Australia ? YesYesYes(Foreign national could fall under definition of Commonwealth Public Official. 22 ) 
Foreign company/partnership if bribe is committed abroad? NoYesNo (Companies don’t fit within definition of Commonwealth Public Official) 
Penalties    
Penalties include: 

Individuals:  23

  • Imprisoned for up to 10 years, and/or  
  • Fined up to AUD3,130,000 

Corporations:  24

Fine not more than the greatest of:  

  • AUD31,300,000 
  • Three times the value of benefits obtained (by the corporation and any related corporation), 
  • Where the benefits are unascertainable 10% of annual turnover for the previous 12 months for the corporation and any related corporations (subject to exclusions) 

Bribery Offence: 

Individuals: 

  • Imprisoned for up to 10 years, and/or  
  • Fined up to AUD3,130,000 

Corporations: 

Fine not more than the greatest of:  

  • AUD31,300,000 
  • Three times the value of benefits obtained (by the corporation and any related corporation), 
  • Where the benefits are unascertainable, 10% of annual turnover for the previous 12 months for the corporation and any related corporations (subject to exclusions) 

Corrupting Benefits Offence: 

Individuals: 

  • Imprisoned for up to 5 years 

Bribery Offence: 

  • Imprisoned for up to 10 years, and/or  
  • Fined up to AUD3,130,000 

Corrupting Benefits Offence/Abuse of Public Office: 

  • Imprisoned for up to 5 years 
Defences    
Are there any defences available? Yes (See the facilitation payment defence and written law defences above at ss 70.3 and 70.4; there is a general defence for conduct carried out under duress: see s 10.2)  25 Yes (There is a general defence for conduct carried out under duress: see s 10.2) 26 Yes  (There is a general defence for conduct carried out under duress: see s 10.2)  27