AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
A similar but lesser offence applies to corrupting benefits given to a Commonwealth public official under Section 142.1(1) of the Criminal Code. Corresponding offences apply to the receipt by Commonwealth public officials of bribes or cor - rupting benefits: Sections 141.1(3) and 142.1(3). It is also an offence under Section 135.4(7) to conspire with another person with the intention of dishonestly influencing a Commonwealth public official in the exercise of their duties. Furthermore, various state and territory provi - sions prohibit bribery of state and territory public officials, which provisions are often the same as those prohibiting private sector bribery. Foreign Bribery The foreign bribery offence is contained in Sec - tion 70.2(1) of the Criminal Code. As now amend - ed, 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 business or a business or personal advantage. The offence captures bribes made to foreign public officials either directly or indirectly via an agent, relative or business partner. “Foreign public official” is broadly defined and includes, but is not limited to, an employee, con - tractor or official of a foreign government depart - ment or agency, a foreign government-controlled company or public international organisation. Since the Combatting Foreign Bribery Act came into force, it also includes candidates for office. “Benefit” is also broadly 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 legitimately due” to the other person. Those elements will only apply to conduct which occurred prior to 8 September 2024. Private Sector Bribery Commercial, or private sector, bribery is crimi - nalised by state and territory legislation. Gen - erally speaking, those laws prohibit the cor - rupt giving or offering of inducements or secret commissions to, or the receipt by, employees or agents of private or public companies and indi - viduals. Conduct is considered “corrupt” only if it is engaged in with the intention of influencing 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 busi - ness 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);
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