Bribing a foreign public official is an offence under section 70.2 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 10 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- You provided a benefit to another person, or you caused a benefit to be provided to another person, or you offered or promised to provide a benefit to another person, or you caused an offer or promise of a benefit to be provided to another person
- The benefit was not legitimately due to the other person, and
- You did so intending to influence a foreign public official in the exercise of his or her duties as a foreign public official, in order to:
- Obtain or retain business, or
- Obtain or retain a business advantage that is not legitimately due
A ‘foreign public official’ is defined as:
- an employee or official of a foreign government body
- A person who performs contractual work for a foreign government body
- A person who holds or performs duties of an appointment, office or position under a law of a foreign country or part thereof
- A person who holds or performs the duties of an appointment, office or position created by custom or convention of a foreign country or part thereof
- A person who otherwise serves a foreign government body
- A member of the executive, judiciary or magistracy of a foreign country
- An employee of a public international organisation
- A person who performs contractual work for a public international organisation
- A person who holds or performs the duties of an office or position in a public international organisation
- A person who otherwise serves a public international organisation
- A member or officer of the legislature of a foreign country, or
- A person who:
- Is an authorised intermediary of a foreign public official, or
- Holds himself or herself out to be the authorised intermediary of a foreign public official
The prosecution does not need to prove that:
- It was your intention to influence a particular foreign public official, or
- An advantage was actually obtained or retained.
The following matters are irrelevant to any determination of whether a benefit or advantage was legitimately due:
- That the benefit was customary, or perceived as customary, to the particular situation
- That the benefit was minor, and
- That there was official tolerance of the benefit.
You are not guilty of the offence if:
- You held a position with a foreign government, agency or body
- Your conduct occurred in that foreign country, and
- Your conduct was lawful in that country.
You are also not guilty if:
- The value of the benefit was minor
- Your conduct was for the sole purpose of expediting or securing the performance of a routine government action of a minor nature
- You made a record of your conduct as soon as practicable after it occurred, and
- You retained a copy of that record, or the record was destroyed through actions that were out of your control, or the prosecution was instituted more than 7 years after the conduct occurred.
Duress is also a defence to the charge.