Bribery & Foreign Bribery
The Australian Government has become more aggressive in their position against foreign bribery and other forms of economic corruption, making it much easier to prosecute companies for bribery offences. This is particularly relevant for the large global mining, exploration and oil and gas industries who deal with many different countries, and differing laws where they operate.
What is bribery?
What is a bribe?
A bribe, often referred to as an ‘undue reward’, is the act of dishonestly, persuading or coercing someone to act in another’s favour through the use of money or other inducements.
What is corruption?
The term ‘corruptly’ has been the subject of judicial interpretation and the Court of Criminal Appeal recently explained that secrecy was the corrupting element of the offence. It is the non-disclosure which makes the receipt of the commission or reward corrupt. The intention of the person charged, whether giving or receiving the payment, is the relevant factor in deciding whether the behaviour charged is corrupt.
What is foreign bribery?
Foreign bribery is providing or offering a benefit to a foreign public official where the benefit is not legitimately due. As a result of the benefit, it is intended to influence a foreign public official in the exercise of their official duties to obtain business or a business advantage.
What are the penalties for bribery?
Nearly all countries have criminal laws against bribing domestic officials and a growing number of countries have laws against bribing foreign officials. There are some severe penalties for individuals and corporations involved in bribery and corruption, including fines and even imprisonment for up to 10 years.
In fact, if an employee of a corporation has been convicted of bribery or corruption, the company for could be fined up to $11M or 3 times the value of the benefit, or 10 percent of the company’s turnover in a period of 12 months. The time is measured from 12 months before the offence was committed. These high penalties for foreign bribery reflect the seriousness of the offence. As well as this, the reputational impact of corruption for large multinationals can be extensive, resulting in loss of confidence in its workforce, consumers, and peers.
What defences are available to a charge of bribery?
There are some defences that could be considered by the Courts, depending on where the corruption allegation took place. This includes:
- where the conduct was lawful in the foreign public official’s country, in the sense that it is permitted or required by written law
- where a payment is a facilitation payment made to expedite or secure the performance of a routine government action of a minor nature, and the payment is of minor value.
There continues to be difficulties with cross-jurisdictional assistance, language, and general international cooperation, so it’s up to multinational corporations to ensure their employees comply with local and international legislation and maintain a strong, equitable corporate culture. Employees must be aware of the types of activities that are legal and illegal when interacting with foreign officials.
However, this is soon hope to be resolved through the Federal Government’s recently launched reforms to strengthen Australia’s anti-bribery and anti-corruption regime.
The increase in multi-jurisdictional cooperation and intelligence-sharing across different countries means that companies and individuals engaging in unethical conduct which could be considered corrupt are at greater risk of getting caught and penalised.
Individuals and companies with questions about the offence of foreign bribery are encouraged to get in touch with our team of qualified lawyers who can assist you to understand how this may related to you and your business.