What the Law States – Bribing a Foreign Public Official

Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 – section 70.2

70.2. Bribing a foreign public official

A person is guilty of an offence if:
1. the person:
  1. provides a benefit to another person; or
  2. causes a benefit to be provided to another person; or
  3. offers to provide, or promises to provide, a benefit to another person; or
  4. causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and
2. the benefit is not legitimately due to the other person; and
3. the first-mentioned person does so with the intention of influencing a foreign public official (who may be the other person) in the exercise of the official’s duties as a foreign public official in order to:
  1. obtain or retain business; or
  2. obtain or retain a business advantage that is not legitimately due to the recipient, or intended recipient, of the business advantage (who may be the first-mentioned person).

What the Prosecution Must Prove – Bribing a Foreign Public Official – Commonwealth

For a Person

The offence of bribing a foreign public official is contained in section 70.2 of the Criminal Code. A person is guilty of the offence if the person intentionally:

provides, offers or promises a benefit to another person
causes a benefit to be provided, offered or promised to another person.

The person must act with the intention of improperly influencing a foreign public official in order to obtain or retain business or a business or personal advantage (whether or not for the person).

The offence applies regardless of whether or not the person:

intended to influence a particular foreign public official
intended to obtain or retain the particular advantage
was successful in obtaining or retaining the advantages sought.

For a Corporation

Under Division 12 of the Criminal Code, corporations can be liable for Commonwealth offences. This means that a corporation can be found guilty of foreign bribery as a result of the actions of its employees and agents. This can occur where:

The corporation’s top-level management or board of directors intentionally, knowingly or recklessly committed the foreign bribery offence.
The corporation’s top-level management or board of directors expressly, tacitly or impliedly authorised, or permitted the commission of, the foreign bribery offence by an agent of the corporation.
An agent of the corporation offered a bribe and it is shown that a corporate culture existed within the corporation that directed, encouraged, tolerated or led to, the commission of the foreign bribery offence.
An agent of the corporation offered a bribe and it is shown that the corporation failed to create and maintain a corporate culture that required compliance with the laws against bribing foreign public officials.

The offence above is separate from, and in addition to, the ‘failure to prevent’ offence contained in section 70.5A of the Criminal Code which is the result of recent foreign bribery reforms and commences 8 September 2024.

The ‘failure to prevent’ offence in section 70.5A of the Code is strict liability and applies to body corporates that fail to prevent bribery of foreign public official by its “associates”. An “associate is broadly defined and includes any person or company operating anywhere on the company’s behalf for profit.

Have you been charged with bribery of a foreign official or want learn more? Read on. Contact our criminal lawyers in Melbourne to discuss your case.

Elements of the Charge of Bribery of a Foreign Official

What the Law States – Bribing a Foreign Public Official

What the Prosecution Must Prove – Bribing a Foreign Public Official – Commonwealth