Use the Lexology Navigator tool to compare the answers in this article with those from other jurisdictions.
Specific offences and restrictions
What are the key corruption and bribery offences in your jurisdiction?
Section 141.1(1) of the Criminal Code provides that it is an offence for a person to dishonestly provide, offer or cause a benefit to another person if done with the intention of influencing an Australian commonwealth public official. If a commonwealth official requests, receives or agrees to obtain a benefit with the intention of having his or her duties influenced, he or she will be criminally liable under Section 141.1(3).
Section 141.1 also has extraterritorial effect. An individual or corporation will be liable even if the conduct constituting an offence did not occur in Australia if it involved an Australian public official.
Each state or territory also has its own provisions which prohibit the bribery of public officials. These provisions are often the same as those which prohibit bribery within the private sector:
- New South Wales – Section 249B of the Crimes Act 1900;
- Victoria – Section 176 of the Crimes Act 1958;
- South Australia – Section 150 of the Criminal Law Consolidation Act 1935;
- Queensland – Sections 442B-442BA of the Criminal Code Act 1899;
- Western Australia – Sections 529-530 of the Criminal Code;
- Tasmania – Section 266 of the Criminal Code Act 1924;
- Australian Capital Territory – Sections 356-357 of the Criminal Code 2002; and
- Northern Territory – Section 236 of the Criminal Code Act 1983.
Section 70.2(1) of the code makes it an offence to provide, offer or promise to provide a benefit not legitimately due to another person, with the intention of influencing the exercise of a foreign public official’s duties in order to obtain business or a business advantage.
Section 70.1 defines ‘foreign public official’ broadly to include:
- an employee or official of a foreign government body;
- a member of the executive or judiciary of a foreign country;
- a person who performs official duties under the law of a foreign country; or
- an employee or official of a public international organisation (eg, the United Nations).
The term ‘benefit’ is also defined broadly by Section 70.1 to mean “any advantage” and is expressly not limited to property.
Direct and indirect bribery is dealt with by Section 70.2(1), which notes that even bribery via an agent, relative or business partner constitutes an offence under the Criminal Code.
Are specific restrictions in place regarding the provision of hospitality (eg, gifts, travel expenses, meals and entertainment)? If so, what are the details?
Australian legislation does not expressly refer to all the circumstances in which providing gifts or hospitality may amount to bribery. Giving such benefits will be illegal only if it is done with the intention of influencing a public official. There are a number of guidelines which set out relevant standards, such as:
- the Public Service Act 1999 (Cth), which has a series of relevant standards set out in the Australian Public Service Code of Conduct;
- the Australian Public Service Values, under the umbrella of the Australian Public Service Commission Guide; and
- the Code of Conduct for Overseas Service.
Further, the state and territory governments have their own public services with their own codes of conduct, which may be supplemented by agency-specific codes.
What are the rules relating to facilitation payments?
Within Australia, criminal liability is excluded for facilitation payments under the Criminal Code. However, Section 70.4(3) of the code notes that detailed records must be kept in order to qualify a payment as a legitimate facilitation payment. Some of these details include:
- the benefit concerned;
- the identity of the foreign official;
- the person receiving the benefit; and
- the particulars of the routine government action sought.
Click here to view the full article.