AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
Gifts and Hospitality Australian legislation does not expressly articu - late the circumstances under which providing gifts and hospitality may amount to bribery. As the law currently stands, the giving of such ben - efits will only be unlawful if done with the inten - tion of improperly influencing a public official. In Australia, there is close scrutiny of the pro - vision 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 particu - lar, each Commonwealth, state and territory gov - ernment has its own public service with its own code of conduct, which are often supplemented by agency-specific codes of conduct. While it will depend on the applicable guidelines, generally speaking, gifts of more than token val - ue should be avoided. 2.2 Influence-Peddling There are no specific offences in Australia direct - ed at influence peddling. However, given that the substantive bribery offences are broad in scope, depending on the facts and circumstances of a particular case, the exchange of influence in respect of decision-making for an undue advan - 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 transactions, financial position and perfor - mance. Failure to keep such financial records tage may constitute an offence. 2.3 Financial Record-Keeping
• Section 249D prohibits a person from cor - ruptly giving (or receiving) a secret benefit to (or from) another person for providing advice to a third party, with the intention of influenc - ing the third party to either: (a) enter into a contract with the person giv - ing the benefit; or (b) appoint the person giving the benefit to any office. The definition of “agent” is wide and includes employees, while “benefit” includes money and any contingent 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 brib - ery for the profit or gain of the body corporate. It does not apply if the body corporate 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 corporations for operations abroad, including for example: • where a subsidiary company commits foreign bribery (whether within or outside of Austral - ia), provided 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.
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