AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
Furthermore, various state and territory provisions prohibit bribery of state and territory public officials, which provisions are often the same as those prohibit - ing private sector bribery. Foreign Bribery The foreign bribery offence is contained in Section 70.2 (1) of the Criminal Code. As now amended, that section provides that it is an offence to provide, offer or cause to be provided or offered to another person a benefit with the intention of improperly influencing a foreign public official in order to obtain or retain busi - ness or a business or personal advantage. The offence captures bribes made to foreign public officials either directly or indirectly via an agent, rela - tive or business partner. “Foreign public official” is broadly defined and includes, but is not limited to, an employee, contrac - tor or official of a foreign government department or agency, a foreign government-controlled company or public international organisation. Since the Com - batting Foreign Bribery Act came into force, it also includes candidates for office. “Benefit” is also broad - ly defined to include any advantage. Previously, the elements of the foreign bribery offence were narrower and required, among other things, proof that the alleged illicit benefits were “not legiti - mately due” to the other person. Those elements will now only apply to conduct which occurred prior to 8 September 2024. Private Sector Bribery Commercial, or private sector, bribery is criminalised by state and territory legislation. Generally speaking, those laws prohibit the corrupt giving or offering of inducements or secret commissions to, or the receipt by, employees or agents of private or public compa - nies and individuals. Conduct is considered “corrupt” only if it is engaged in with the intention of influenc - ing the recipient to show favour, and the fact that the commission is secret raises the presumption that it was given corruptly.
An example of the state and territory provisions are those contained in the Crimes Act 1900 (NSW) (the “NSW Crimes Act”). Among other things: • Section 249B(1) prohibits an agent from corruptly receiving or soliciting (or corruptly agreeing to receive or solicit) any benefit from another person: (a) as an inducement, a reward, or on account of doing or not doing something, or showing or not showing favour to any person in relation to the affairs or business of the agent’s principal; or (b) if it would tend to influence the agent to show or not show favour to any person in relation to the affairs or business of the agent’s principal; • corresponding offences of giving or offering such benefits to an agent are imposed by Section 249B(2); • Section 249D prohibits a person from corruptly giving (or receiving) a secret benefit to (or from) another person for providing advice to a third party, with the intention of influencing the third party to either: (a) enter into a contract with the person giving the benefit; or (b) appoint the person giving the benefit to any office. The definition of “agent” is wide and includes employ - ees, while “benefit” includes money and any contin - gent benefit. Failure to Prevent Foreign Bribery Failure to prevent foreign bribery is an offence under Section 70.5A of the Criminal Code, which came into force on 8 September 2024. The offence stipulates that a body corporate is liable where an associate commits foreign bribery for the profit or gain of the body corporate. It does not apply if the body corpo - rate had in place adequate procedures designed to prevent the commission of the foreign bribery offence by its associates. The imposition of strict liability on companies for the conduct of an “associate”, which is defined broadly, will facilitate greater responsibility on Australian cor - porations for operations abroad, including for exam - ple:
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