The Australian Criminal Code Act 1995 has provisions against the bribery of foreign public officials under Division 70 and bribery of Commonwealth public officials under Division 141.
These provisions prohibit the dishonest direct or indirect conferral of a benefit on a Commonwealth public official with the intention of influencing their exercise of duties as a Commonwealth public official and for bribery of a foreign public official for the purpose of obtaining or retaining a business advantage.
The Criminal Code Act 1995 defines a public official as a person who has had, or holds out to have had, conferred on them any authority, duty, function, or power as a public official. In addition, the Public Administration Act 2004 (Victoria) defines a public official as including:
a) A public sector employee;
b) A person employed under Division 3 of Part 6;
c) A Parliamentary officer within the meaning of the Parliamentary Administration Act 2005;
d) The holder of a statutory office or a prerogative office;
e) A director of a public entity- but does not include-
i) The Governor or the Lieutenant Governor;
ii) A judge, a magistrate, a coroner, or a member of VCAT;
A) A responsible Minister of the Crown or a Parliamentary Secretary;
B) The President of the Legislative Council or the Speaker of the Legislative Assembly;
C) A Ministerial officer employed under Division 1 of Part 6.
In Victoria, under the Public Administration Act 2004, public sector employee means:
a) An employee; or
b) A person employed by a public entity or special body.
In Queensland, under the Public Sector Ethics Act 1994, the definition of public official is:
a) An officer or employee of a public sector entity; or
b) A constituent member of a public sector entity, whether holding office by election or selection;
however, does not include a judicial officer or local government councillor.
“public sector entity” means any of the following:
a) The Parliamentary Service;
b) The administrative office of a court or tribunal;
c) A department;
d) A local government;
e) A university, university college, State college, or agricultural college;
f) A commission, authority, office, corporation or instrumentality established under an Act or under State or local government authorisation for a public, State or local government purpose;
g) An entity, prescribed by regulation that is assisted by public funds;
however, does not include any of the following:
h) a GOC; (emphasis added)
ha) A corporatized corporation;
i) The following entities under, or within the meaning of, the Education (General Provisions) Act 1989:
i) A parents and citizens association;
ii) A school that is not a State school;
iii) An advisory committee;
iv) An international educational institution;
j) An entity prescribed by regulation.
It does not appear that the definition of public official extends so far as to cover state-owned enterprise employees for the purposes of application of the ‘receipt of benefit’ bribery provisions.
Candidates for public office
There is no relevant provision to this effect in the Criminal Code Act 1995, and it appears that the definition of public official does not extend to include candidates for public office; however, section 326 of the Commonwealth Electoral Act 1918 prohibits bribery for candidates of public office.
The giving of a bribe is the dishonest direct or indirect conferral of a benefit on a Commonwealth public official with the intention of influencing their exercise of duties as a Commonwealth public official, whether or not the giver was aware that the receiver was a Commonwealth public official and was exercising the duties of a Commonwealth public official. Conversely, the definition includes a Commonwealth public official’s dishonest request or agreement to receive a direct or indirect benefit with the intention that the receipt will, or will be perceived to, influences the exercise of that official’s duties.
A benefit includes any advantage and is not limited to property.
Payer of the bribe
Section 141.1 (1) Criminal Code Act 1995 describes the offence relating to the giving of a bribe to a Commonwealth public official.
Recipient of the bribe
Section 142.1 (3) Criminal Code Act 1995 indicates that the receipt of a bribe is an offence, and so applies to recipients of bribes.
Section 70.3 Criminal Code Act 1995 is a defence to the contravention of the bribery provisions under the Criminal Code Act 1995 where it can be shown that the act that is the subject of the contravention is actually permitted by written law in the relevant jurisdiction where the act occurred.
Exceptions, such as facilitation ( “grease”) payments
There is such an exception; occurring at section 70.4 of the Criminal Code Act 1995. In circumstances where the benefit conferred on the official was of a minor nature, with the intention of facilitating the performance of a minor, routine government action, and that benefit was recorded in accordance with the Criminal Code Act 1995, the person who conferred that benefit is not guilty of an offence.
In the case of an individual’s conviction, liability extends to a penalty of up to AUD$1,100,000.00 and/or 10 years’ imprisonment.
In the event of a corporate conviction, the penalty is the greatest of the following:
- AUD$11,000,000.00; or
- 3 times the amount of the benefit reasonably attributable to the commission of the offence; or
- 10% of the corporation’s annual turnover in the 12 months subsequent to the offence
It appears there have not been any convictions under the bribery and anti-corruption provisions of the Criminal Code Act 1995. However, in light of the relatively recent bribery convictions in China of Rio Tinto employees, and the earlier incidents involving the Australian Wheat Board and HIH, awareness is rising in Australia.
UN Convention against Corruption
Australia signed and ratified the UNCAC on 9 December 2003 and 7 December 2005, respectively. Australia has implemented the mandatory requirements and some non-mandatory requirements, as detailed in the Articles of UNCAC.
For example, the Criminal Code Act 1995 includes provisions relating to corrupting benefits given to Commonwealth public officials, abuse of public office, other dishonest acts involving Commonwealth public officials, and the bribery of foreign public officials.
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