AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
• where a subsidiary company commits foreign bribery (whether within or outside of Australia), pro - vided it does so for the profit or gain of the parent company; or • where bribery is committed by junior or mid-level personnel, or by external agents, even without the knowledge and approval of senior management of the company. Gifts and Hospitality Australian legislation does not expressly articulate the circumstances under which providing gifts and hos - pitality may amount to bribery. As the law currently stands, the giving of such benefits will only be unlaw - ful if done with the intention of improperly influencing a public official. In Australia, there is close scrutiny of the provision of gifts, entertainment and hospitality involving the public sector. As such, Australian public officials are usually subject to guidelines on the receipt of gifts and hospitality. In particular, each Commonwealth, state and territory government has its own public service with its own code of conduct, which are often sup - plemented by agency-specific codes of conduct. While it will depend on the applicable guidelines, gen - erally speaking, gifts of more than token value should be avoided. 2.2 Influence-Peddling There are no specific offences in Australia directed at influence peddling. However, given that the substan - tive bribery offences are broad in scope, depending on the facts and circumstances of a particular case, the exchange of influence in respect of decision-mak - ing for an undue advantage may constitute an offence. 2.3 Financial Record-Keeping False accounting offences are found in Part 10.9 of the Criminal Code, and criminalise intentional or reckless concealment of bribery by dealing with accounting documents. Section 286 of the Corporations Act also requires companies to retain written financial records for seven years that correctly record and explain their transac - tions, financial position and performance. Failure to
keep such financial records is a strict liability offence. In addition, it is an offence under Section 1307 for an employee or former employee of a company to falsify any books relating to the affairs of the company. The Crimes Acts of various states and territories also have similar false accounting offences, such as Section 83 (1)(a) of the Crimes Act 1958 (Vic), which makes it an offence to dishonestly falsify a document made for an accounting purpose. 2.4 Public Officials Domestic public officials also commit an offence by engaging in corrupt practices. For example, as referred to in 2.1 Bribery , Section 141.1 (3) of the Criminal Code provides that it is an offence for a Com - monwealth public official to: dishonestly ask, receive, obtain, or agree to receive or obtain a benefit for them - selves or another person with the intention that the exercise of their official duties will be influenced, or of inducing, fostering or sustaining such a belief. A similar but lesser offence applies if a Common - wealth public official receives a corrupting benefit (Section 142.1 (3)). A Commonwealth public official will also commit an offence against Section 142.2 of the Criminal Code for the abuse of public office. This provision will be breached if the official exercises influence, engages in conduct, or uses information obtained in their capac - ity as an official, with the intention of dishonestly obtaining a benefit for themselves or another person, or causing detriment to another person. The states and territories also legislate against public officers seeking or accepting bribes or other benefits to which they are not entitled. New South Wales is the only Australian jurisdiction that retains a specific offence of embezzlement (Part 4, Division 6, NSW Crimes Act). This offence crimi - nalises conduct in which an employee intentionally misappropriates property entrusted to them by their employer. In other Australian jurisdictions, embezzle - ment conduct is dealt with under provisions relating to fraud, theft or other property offences.
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