AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
Clayton Utz 1 Bligh Street Sydney NSW 2000 Australia
Tel: +61 2 9353 4000 Fax: +61 2 8220 6700 Email: tmeagher@claytonutz.com Web: www.claytonutz.com
1. Legal Framework 1.1 International Conventions
states and territories, rather than being criminalised by statute (as occurs in other states and territories). The common law bribery offence is constituted by the offering or receiving of an undue reward to or by any person in public office in order to influence that per - son’s behaviour in that office. 1.3 Guidelines for the Interpretation and Enforcement of National Legislation Unlike the United States and the United Kingdom, Australian government agencies have published lim - ited guidance on the interpretation and enforcement of the various anti-bribery and corruption laws. The Attorney-General’s Department (AGD) has devel - oped an online learning module on foreign bribery, which provides guidance on Australia’s anti-bribery policy, relevant laws, and their application. In August 2024, following amendments to the foreign bribery offence, the “Guidance on adequate procedures to prevent the commission of foreign bribery” (the “Ade - quate Procedures Guidance”) was also published, containing guidance that may be relevant to proof of defences by companies charged under the Criminal Code. The Bribery Prevention Network is a public-private partnership offering a free online resource portal designed to support Australian businesses in prevent - ing, detecting and addressing bribery and corruption risks both locally and overseas. The Australian Tax Office (ATO) has also published guidelines on under - standing and dealing with the bribery of Australian and foreign public officials.
Australia ratified the Organisation for Economic Co- operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in Inter - national Business Transactions (the “OECD Conven - tion”) in 1999. Australia is also a signatory to the Unit - ed Nations Convention against Corruption (UNCAC) of 2003. As a state party to both treaties, Australia is required to criminalise bribery of domestic and foreign public officials in the course of international business. 1.2 National Legislation Australia gives effect to its treaty obligations primarily through the Criminal Code Act 1995 (Cth) (Criminal Code). This is the federal legislation prohibiting the bribery of Commonwealth domestic and foreign pub - lic officials. Other relevant Commonwealth legislation includes the Corporations Act 2001 (Cth) (the “Cor - porations Act”) and the Proceeds of Crime Act 2002 (Cth) (POCA). All of Australia’s six states and two territories have also legislated against public sector and private sec - tor bribery, typically in their applicable crimes legisla - tion. While the laws differ between each state and territory, generally it is an offence to corruptly give or offer an inducement or reward to an agent for doing or not doing something regarding the affairs of the agent’s principal. It is also an offence to aid, abet, counsel, procure, solicit or incite the commission of these offences. Bribery and misconduct in public office also remain criminal offences under the common law of some
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