AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
1. Legal Framework 1.1 International Conventions
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 person’s behaviour in that office. 1.3 Guidelines for the Interpretation and Enforcement of National Legislation Unlike the United States and the United King - dom, Australian government agencies have published limited guidance on the interpretation and enforcement of the various anti-bribery and corruption laws. The Attorney-General’s Department (AGD) has developed an online learning module on foreign bribery, which provides guidance on Australia’s anti-bribery policy, relevant laws, and their appli - cation. It has also published a Foreign Bribery Information and Awareness Pack, which pro - vides key information on the foreign bribery offence. In August 2024, following amendments to the foreign bribery offence, the “Guidance on adequate procedures to prevent the commission of foreign bribery” (the “Adequate Procedures Guidance”) was also published, containing guid - ance that may be relevant to proof of defences by companies charged under the Criminal Code. The Bribery Prevention Network is a public-pri - vate partnership offering a free online resource portal designed to support Australian businesses in preventing, detecting and addressing bribery and corruption risks both locally and overseas. The Australian Tax Office (ATO) has also pub - lished guidelines on understanding and dealing with the bribery of Australian and foreign public officials. Lastly, the Prosecution Policy of the Common - wealth (the “Prosecution Policy”) provides guid - ance as to how prosecution decisions are to
Australia ratified the Organisation for Economic Co-operation and Development (OECD) Con - vention on Combating Bribery of Foreign Public Officials in International Business Transactions (the “OECD Convention”) in 1999. Australia is also a signatory to the United Nations Conven - tion 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 legis - lation prohibiting the bribery of Commonwealth domestic and foreign public officials. Other rel - evant Commonwealth legislation includes the Corporations Act 2001 (Cth) (the “Corporations 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 sector bribery, typically in their appli - cable crimes legislation. While the laws differ between each state and territory, generally it is an offence to corruptly give or offer an induce - ment 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, coun - sel, 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 states and territories, rather than being criminalised by statute (as occurs in other states
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