Elements of the Charge of Bribery of a Foreign Official

Foreign bribery sits near the top of the list when it comes to how seriously Australian authorities treat white-collar crime. The Australian Federal Police and the Commonwealth Director of Public Prosecutions don’t let the matters slide, they pursue them with real persistence, and the resourcing behind that effort has only grown.

Since October 2025, foreign bribery investigations have been handled by Taskforce Solaris, a dedicated AFP unit built specifically to prevent, detect, and investigate foreign bribery and grand corruption. That is not a minor administrative change, it is a clear statement that this area of law enforcement is now a genuine priority.

If you are under investigation, have already been charged, or you are worried your business might be exposed to a bribery allegation involving a foreign official, this isn’t a matter to handle without proper legal firepower. You need a criminal lawyer who has real, specific experience in this area, not general commercial advice, but someone who understands exactly how these cases are built and fought.

The Offence: What the Law States

The offence of bribing a foreign public official is set out in section 70.2 of the Criminal Code. In summary, a person is guilty of the offence if they:

• provide, offer, or promise to provide a benefit to another person, or cause such a benefit, offer, or promise to be made; and
• the benefit is not legitimately due to the recipient; and
• they act with the intention of improperly influencing a foreign public official (who may or may not be the person receiving the benefit) in order to obtain or retain business, or a business or personal advantage.

Critically, the offence does not require the prosecution to prove that a particular foreign official was successfully influenced, that a particular advantage was actually obtained, or that the scheme succeeded at all. The offence is complete once the benefit is offered, promised, or provided with the requisite intention, actual success is irrelevant.

Corporate Liability

Under Division 12 of the Criminal Code, corporations can be held criminally liable for the conduct of their employees and agents. A corporation can be found guilty of foreign bribery where:

• its top-level management or board intentionally, knowingly, or recklessly committed the offence;
• its top-level management or board expressly, tacitly, or impliedly authorised or permitted an agent’s commission of the offence;
• a corporate culture existed that directed, encouraged, tolerated, or led to the offence being committed by an agent; or
• the corporation failed to create and maintain a corporate culture requiring compliance with foreign bribery laws.

A separate, additional offence

Since September 2024, there’s also been a second, separate offence a company can be charged with, the ‘failure to prevent bribery’ offence under Section 70.5A. This one doesn’t depend on the company’s leadership knowing anything about the bribery. If an associate of the company, which can mean an employee, agent, contractor, subsidiary, or basically anyone acting on the company’s behalf, pays a bribe, the company itself can be found guilty simply for failing to stop it. It doesn’t even matter if that associate is ever personally convicted. The only way out is showing the company had genuinely adequate procedures in place to prevent this kind of conduct.

Maximum Penalties

For an individual: imprisonment for up to 10 years, a fine of up to 10,000 penalty units, or both.

For a corporation (under s 70.2), the maximum fine is whichever is greater of:

• 100,000 penalty units;
• three times the value of the benefit obtained, where that value can be determined; or
• if the value cannot be determined, 10% of the corporation’s annual turnover (including related bodies corporate) in the 12 months ending at the end of the month the conduct occurred.

On the question of how “the value of the benefit” is calculated, the High Court settled a previously contested point in The King v Jacobs Group (Australia) Pty Ltd [2023] HCA, confirming that the calculation must be based on the gross value of the benefit obtained, not the net value after deducting the costs of the offending.

Beyond the criminal penalty itself, any benefit obtained through foreign bribery can be separately seized and forfeited as proceeds of crime under the Proceeds of Crime Act 2002 (Cth).

What Counts as a “Benefit”?

Section 70.2 refers to a “benefit,” but the Code actually defines the related term “advantage” in section 70.1: “advantage means an advantage of any kind and is not limited to property.” This deliberately wide definition means virtually anything capable of improperly influencing a foreign official can fall within scope, not just money or property, but favours, preferential treatment, or any other kind of gain.

A common illustration: if an Australian company’s joint venture partner receives an advantage through a bribe, this can still be captured by the offence, even though the Australian company didn’t pay the bribe directly. Here, the key question becomes one of intent and knowledge what the Australian company knowingly entered into, and whether it intended to improperly influence a foreign official through that arrangement.

Who Is a “Foreign Public Official”?

Section 70.1 of the Criminal Code contains an extensive, deliberately broad definition of “foreign public official.” It includes:

• an individual who performs official duties under a foreign law;
• an employee of a foreign public enterprise;
• an employee or official of a public international organisation;
• an employee or official of a foreign government;
• an authorised intermediary of a public official, or a person who represents themselves as such;
• a member of the executive, legislature, or judiciary of a foreign country, including heads of state, ministers, and their staff;
• an individual holding an official post as a result of local custom;
• an individual standing or nominated as a candidate to be a foreign public official; and
• an individual providing a public service as defined under the foreign country’s own domestic law.

One important nuance: a person who holds themselves out as an authorised intermediary of a foreign public official falls within the definition, even if they aren’t formally appointed as one. By contrast, an Australian-style lobbyist, someone whose role is to persuade others to support or initiate business dealings, but who does not act as an intermediary for a foreign official, falls outside this definition.

Defences

Two offence-specific defences apply to the s 70.2 bribery offence itself:

• Conduct lawful in the foreign official’s country (s 70.3) – where the provision of the benefit was, in fact, required or permitted under the written law of the foreign public official’s country.
• Facilitation payments (s 70.4) – a narrow defence covering minor payments made to expedite or secure the performance of a routine government action, where the payment is of minor value and the person creates and retains a record of it as soon as practicable afterwards. This is a genuinely limited defence, it does not extend to payments intended to influence a discretionary decision, only to speed up something the official was already obliged to do.

For the separate corporate “failure to prevent” offence under s 70.5A, the only available defence is that the corporation had adequate procedures in place designed to prevent bribery by its associates (s 70.5A(5)).

Beyond these offence-specific defences, general criminal law defences and evidentiary challenges may also be available depending on the facts, including disputing the requisite intention, challenging whether a “benefit” was genuinely provided, or scrutinising how evidence was gathered.

The DPA Question — Does Australia Have a Deferred Prosecution Agreement Scheme?

Australia doesn’t have a Deferred Prosecution Agreement Scheme, the kind of arrangement companies can use in the UK and US to avoid formal prosecution by admitting wrongdoing, paying penalties, and agreeing to compliance measures. It means a company caught up in a foreign bribery allegation here doesn’t have the negotiated-settlement option available overseas, it’s the full court process, start to finish.

Self-Reporting Foreign Bribery Conduct

If a corporation becomes aware of possible foreign bribery through an internal audit, a whistleblower or otherwise, a key decision is whether to self-report to the AFP. Australia has no formal leniency framework tied to self-reporting, but voluntary disclosure, genuine cooperation, and remedial action (such as strengthening compliance procedures) can still influence how a matter proceeds, including at the prosecution and sentencing stages. Given there’s no DPA scheme and the s 70.5A offence is strict liability, this is a high-stakes decision, one that calls for experienced legal advice before any disclosure is made.

Using a Criminal Lawyer in a Foreign Bribery Matter

Foreign bribery matters, whether involving an individual or a corporation, are heard in the County Court and are prosecuted with considerable resources and persistence by the Commonwealth. These cases typically involve complex evidence, cross-border conduct, forensic accounting, and detailed statutory definitions that require careful, specific expertise to navigate. Whether you are an individual facing an allegation, or a company assessing your exposure under the new failure to prevent offence, early engagement with an experienced criminal lawyer is critical, both to properly assess the strength of the case against you, and to ensure any steps you take (including around self-reporting or internal investigations) don’t inadvertently worsen your position.

Frequently Asked Questions