Paying the Price: An overview of Australia’s anti-bribery regime and its future

The historic lack of focus in Australia could be because Australia has not had a strong track record of high-profile convictions for contraventions of these laws (in particular foreign bribery and corruption offences) when compared to regulatory actions and penalties in the US in particular, but - as outlined below - this is slowly starting to change, with Australia continuing to invest in this area of law enforcement. 

To assist you in understanding the Australian framework of these laws, we highlight in this brief update the key features of Australia’s laws on bribery and corruption, at a federal and state level, relevant to businesses operating in Australia. 

Commonwealth Anti-Bribery

At the Commonwealth level, bribery is regulated by the Criminal Code Act 1995 (Cth) (Code). It applies to individuals and corporations, and covers offences within Australia as well as extra-territorial offences committed by an Australian resident, citizen, or incorporated entity.^[1] 

To be found guilty of bribing a foreign public official, the relevant party must cause/provide - or promise to cause/provide - a benefit that is ‘not legitimately due’^[2] and that benefit:

1. must be provided/promised with the intention of influencing a foreign public official, resulting in business or a business advantage;^[3] and
2. is not expressly authorised by the laws of the foreign country, ^[4] or is not a valid facilitation payment for minor/routine government action.^[5]

Individuals who are found guilty of bribing a foreign official can be imprisoned for up to 10 years and/or fined up to $2.75 million.^[6] The maximum fine for corporations who are found guilty of bribing a foreign official is far larger, and is linked to company revenue or the value of the benefit - set at a minimum of $27.5 million.^[7] The court does have discretion to lower this amount if the parties are cooperative or plead guilty early.^[8]

To be found guilty of bribing a…