04 Feb Plain English: Bribery in Australia
You’ve probably heard reference to the Foreign Corrupt Practices Act of the US or the UK’s Bribery Act of 2010. Did you know that in Australia the Commonwealth Criminal Code (enacted as the Criminal Code Act 1995 (Cth)) contains provisions relating to the offence of bribing (providing a benefit not legitimately due) a foreign public official with the intention of influencing that public offical
The offence currently carries a maximum penalty of 10 years imprisonment and/or a fine of $1.7M for individuals and for corporations a fine of up to $17 or the value of the benefit obtain or 10% of annual turnover.
The law applies to conduct occurring wholly or partially in Australia, or conduct occurring wholly outside of Australia by an Australian citizen or corporation.
There are defences available (with the burden of proof lying on the accused) where the conduct is required or permitted under local law or for so-called “facilitation payments” which are seen as minor benefits provided for the sole or dominant purpose of expediting or securing the performance of a routine government action of a minor nature which are subsequently recorded by the provider. In November 2011 the Australian Government conducted a consultation process on potentially removing the facilitation payment defence to bring the Australian provisions into line with more recent international norms such as the UK Bribery Act 2010. The Government’s findings have not yet been released.
While Australia has not historically ranked highly in terms of enforcement of anti-bribery laws, recent actions involving Securency and Note Printing Australia and the self-referral of a potential matter by Leighton Holdings have seen Australia moved into the ‘Moderate Enforcement’ category in Transparency International’s 2012 Progress Report.
A related area of concern is the recent direction that the Australian Securities and Investments Commission (ASIC) has taken in respect of enforcement of breaches of directors duties actions. ASIC has made it clear that they view any action that may expose a company to loss could be seen as a breach of a director duty of care and diligence. This view potentially widens the concept of breach of director’s duties to encompass breach of any law carrying a financial or possibly reputational disadvantage. While ASIC decided not to proceed with any enforcement action against the directors of Securency or Note Printing Australia, future director’s duties actions in this area can not be ruled out.
Businesses operating in the emerging markets should be conscious of their obligations under both the laws of their home jurisdictions and key jurisdictions such as the US and UK (where obligations may be passed on by joint venture partners and/or financiers). For advice on anti-bribery laws and assistance in developing appropriate policies please get in touch with your Hunt & Humphry contact.