AUSTRALIA Law and Practice Contributed by: Tobin Meagher, David Benson, Tessa Trend and William Stefanidis, Clayton Utz
The maximum penalties that may be imposed for private sector bribery vary between the states and territories. By way of example, in NSW, the maximum period of imprisonment for a bribery offence under Section 249B of the NSW Crimes Act is seven years. 5.2 Guidelines Applicable to the Assessment of Penalties Australia has complex legislated sentencing regimes which require each judge, exercis - ing judicial discretion, to impose a sentence of severity appropriate to all the circumstances of the offence. This requires consideration of both aggravating and mitigating factors relevant to the specific facts. The same sentencing prin - ciples which apply to individuals will apply to a corporation. In particular, general deterrence is an important consideration for the sentenc - ing court. However, Australia does not have the same prescriptive sentencing guidelines that exist in other jurisdictions (eg, the United King - dom). There are no guidelines specific to bribery and corruption offences. As a general rule, there is no requirement for individuals and/or companies to disclose viola - tions of Australia’s anti-bribery and corruption laws. However, there are certain exceptions. For example, in NSW, it is an offence under Sec - tion 316 of the NSW Crimes Act for a person, including a company, who knows or believes that another person has committed a serious indictable offence, to fail without reasonable excuse to report that matter to the NSW Police. 6. Disclosure Processes 6.1 Disclosure Obligations
Additional requirements also exist with respect to public disclosures of political donations in the Commonwealth, states and territories. Failure to report political donations may evidence cor - rupt or dishonest intentions for the purposes of domestic bribery offences. 6.2 Voluntary Disclosure Incentives While the AFP encourages self-reporting of for - eign bribery, there remain limited incentives to do so. In 2017, the CDPP and the AFP jointly developed a Best Practice Guideline on Self- Reporting of Foreign Bribery and Related Offend - ing by Corporations, in an effort to incentivise self-reporting. This guideline identifies public interest factors the CDPP will take into account when deciding whether or not to prosecute a self-reporting corporation, or how the self-report will be taken into account in any future pros - ecution. Further supplementary guidance on self-reporting and corporate co-operation was published by the AFP in 2021. However, these policies do not offer much certainty or comfort for those who may be considering self-reporting. 6.3 Self-Disclosure Procedures The formal decision as to whether or not relevant charges should be laid, either against individuals or a company, is made by the CDPP (or its state/ territory counterparts, where relevant) in accord - ance with its Prosecution Policy, often following a referral by an Australian enforcement agency. Prosecution policies and guidelines provide a foundation for the prosecution and the defend - ant to negotiate what charges should be pro - ceeded with. However, agreements on sentence are not enforceable or binding upon a sentenc - ing court, which ultimately has the discretion to determine the appropriate sentence. This places a significant constraint on a defendant’s ability to plea bargain. In Barbaro v the Queen (2014)
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