What Is Bribery and Is It a Criminal Offence?
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Bribery is a serious offence that undermines ethical business practices and compromises the integrity of transactions. In Australia, the legal system has stringent measures in place to combat bribery and corruption.
The fundamental nature of the bribery offense necessitates an offer that is both known to the intended recipient and capable of being declined. Anything that cannot be refused does not constitute an offer, as established in the case of R v Glynn (1994).
Bribery refers to the act of offering, giving, receiving, or soliciting something of value to influence the actions or decisions of a person in a position of power or authority. This can include monetary rewards, gifts, favours, or any other form of benefit. The key element of bribery is the intention to improperly influence a person’s conduct, whether it involves public officials, private individuals, or businesses.
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Is Bribery a Criminal Offence in Australia?
Bribery is undoubtedly considered a criminal offence in Australia. The legal framework that addresses bribery includes both Commonwealth legislation and state-specific laws. The principal law governing bribery offences at the federal level is the Criminal Code Act 1995 (Cth).
This legislation encompasses various offences, including bribery of foreign public officials, Commonwealth public officials, and members of trade unions. Additionally, each Australian state and territory has its own legislation that covers bribery offences involving state public officials.
Section 141 of the Criminal Code establishes a criminal offence where an individual, with dishonest intent, provides, offers, or causes a benefit to another person in order to influence a public official working for the Commonwealth in the performance of their official duties.
According to section 141.1(3), it is also considered an offence if a Commonwealth public official, acting dishonestly, solicits, receives, or agrees to receive a benefit for themselves or someone else, with the intention of influencing the exercise of their official duties. It is also an offence for a Commonwealth public official to request, receive, or agree to receive a benefit with the intention of creating, fostering, or maintaining a belief that the performance of their official duties will be influenced.
Importantly, an individual can be held accountable under this provision for actions that occur outside the country, as long as they involve a Commonwealth public official.
Part 4A of the Crimes Act 1900 (NSW) was initially created to address corruption within the private sector, but it also encompasses a variety of bribery offences, both in public and private contexts.
According to section 249B, certain actions are deemed criminal under this provision. It is considered an offence for an agent to receive or request a benefit, or for an individual to provide or offer a benefit, under the following circumstances:
- When the benefit is given as an incentive or reward for performing an action or demonstrating favouritism towards any person concerning the agent’s business or affairs.
- When the receipt of the benefit would have the potential to “influence” the agent to display favouritism towards any person regarding the agent’s business or affairs.
In Australia, bribery laws generally prohibit illicit payments, but there is a notable exception known as facilitation payments. This exception applies to companies and their employees operating in foreign jurisdictions. If a payment is of minor value, made to expedite or ensure the execution of a routine government action of minor significance, and the person responsible for the payment promptly records the conduct and keeps a record of it, they are not considered guilty of a bribery offence.
Penalties for Bribery in Australia
The penalties for engaging in bribery in Australia are severe to deter such activities and safeguard the integrity of the country’s institutions. The specific penalties vary depending on the type of bribery offence committed.
Bribery of Foreign Public Officials
- Under the Commonwealth legislation, the offence of bribing foreign public officials is punishable by up to 10 years of imprisonment or substantial fines, or both. The penalties may be increased for corporations, with fines potentially reaching millions of dollars.
Bribery of Commonwealth Public Officials
- Bribing Commonwealth public officials is a serious offence carrying a maximum penalty of 10 years’ imprisonment, fines, or both. This applies to both individuals and corporations involved in such illicit activities.
Bribery of State Public Officials
- Each Australian state and territory has its own legislation dealing with bribery offences involving state public officials. The penalties imposed for these offences can vary, but they are generally substantial and include imprisonment and significant fines.
Bribery within the Private Sector
- While bribery within the private sector is not explicitly covered under federal legislation, it can still be prosecuted under various state laws, such as fraud or corruption offences. Penalties for private sector bribery offences can range from fines to imprisonment, depending on the circumstances.
Bribery is a grave offence that undermines the principles of fairness, transparency, and trust. In Australia, it is considered a criminal offence, and the legal system has established stringent measures to combat and punish acts of bribery. The penalties for engaging in bribery, whether involving public officials or within the private sector, can result in substantial fines and imprisonment.
If you have been charged with a bribery offence, it is important to consult with fraud lawyers in Sydney. We will provide you with a free consultation lawyer for 15 minutes.