Every payment that is made to a foreign official is not treated as a bribe under Australian law. The Code states a narrow, carefully defined exception to bribing a foreign public official. for what is known as “facilitation payments”, i.e. small payments made to speed along a routine, non-discretionary piece of government business rather than to influence any real decision. It is an exception that is easy to misunderstand or misuse as a defence when it doesn’t apply.

What Is a Facilitation Payment?

Simply put, a facilitation payment is a small payment that is not a bribe. It must be recorded as soon as practicable after it has been made, and it cannot involve anything to do with awarding or encouraging new business, allowing existing business to continue, or setting the terms of new or existing business. If a payment touches any of those things, it falls outside the facilitation payment defence entirely, no matter how small it is.

The Statutory Defence: Section 70.4

Section 70.4 of the Criminal Code sets out the defence in detail. A person is not guilty of the bribery offence under section 70.2 if:

The value of the benefit was of a minor nature;

The person’s conduct was engaged in for the sole or dominant purpose of expediting or securing the performance of a routine government action of a minor nature;

As soon as practicable after the conduct occurred, the person made a record of the conduct that complies with the requirements set out below; and

One of the following applies:

The person has retained the record at all relevant times;

The record was lost or destroyed due to the actions of another person, or a non-human event, entirely outside the person’s control, and the person could not reasonably have been expected to guard against that loss; or

A prosecution for the offence was brought more than 7 years after the conduct occurred.

A defendant relying on this defence bears an evidential burden, meaning they need to point to evidence capable of raising the defence, in accordance with section 13.3(3) of the Code, rather than the prosecution needing to disprove it from the outset.

What counts as a “Routine Government Action”?

This is where the defence becomes narrow. A “routine government action” is one that is ordinarily and commonly performed by the official in question, and falls within a defined list of administrative, non-discretionary tasks, including the following:

Granting a permit, licence, or other official document qualifying a person to do business in a foreign country;
Processing government papers, such as visa or work permit;
Providing police protection, or mail collection or delivery;
Scheduling inspections connected to contract performance or the transit of goods;
Providing telecommunications services, power or water;
Loading and unloading cargo;
Protecting perishable goods or commodities from deterioration; or
Any other action of a similar nature.

An action does not qualify as routine government action, no matter how minor the payment involved, if it involves a decision (or even encouraging a decision) about whether to award new business, whether to continue existing business with someone, or the terms of new or existing business. This exclusion is deliberately broad, and it is the main reason facilitation payments are far more limited in practice than people often assume, the moment a payment touches anything resembling a commercial decision, rather than a purely administrative formality, the defence falls away.

What the Record Must Contain

A record isn’t just a note scribbled down after the fact, but rather section 70.4 sets out specific content requirements. To comply, the record must set out the following things:

The value of the benefit concerned;

The date the conduct occurred;

The identity of the foreign public official involved;

If that official isn’t the person who actually received the benefit, the identity of the person who did;

Particulars of the specific routine government action the payment was intended to expedite or secure; and

The person’s signature, or some other means of verifying their identity.

Any of the above stated elements missing can be enough to undermine reliance on the defence later, which is why contemporaneous, careful record keeping is essential and is not an afterthought.

Why This Defence Is Difficult to Rely on in Practice

Basing a defence to a bribery charge on facilitation payments is genuinely problematic unless the payment is very small and squarely limited to greasing the path of a minor, non-discretionary decision. The combination of requirements, i.e. minor value, sole or dominant purpose, a genuinely routine action, proper contemporaneous documentation, and record retention, means the defence offers far less room to move than the phrase ‘facilitation payment’ might suggest. In practice, many payments people assume would qualify (particularly anything connected to securing or maintaining a business relationship) are expressly excluded from the outset, regardless of how small the amount involved. It’s also worth noting that international pressure on facilitation payments has been building. In its 2021 Recommendation for Further Combating Bribery of Foreign Public Officials, the OECD Council formally recognised the “corrosive effect” of small facilitation payments on sustainable development and the rule of law, and called on member countries, Australia included, to review their policies and approach to them, and to encourage companies to prohibit or discourage their use. This reflects a broader international shift away from treating facilitation payments as a low-risk category, even in jurisdictions that retain a narrow legal exception for them. Have you been charged with bribery of a foreign official or want learn more? Read on:

Frequently Asked Questions

If a payment is small, does that automatically make it a facilitation payment rather than a bribe?

No, size alone is not enough. The payment must also be for the sole or dominant purpose of securing a routine, non-discretionary government action, and it must be properly documented as soon as practicable. A small payment made to influence a discretionary decision, or anything connected to winning or keeping business is still a bribe regardless of its size.

What happens if I made a facilitation payment but didn’t keep a record of it?

Without a compliant record, the defence is very difficult to rely on. The Code requires the record to be made as soon as practicable and to contain specific details, i.e. value, date, the official’s identity, and what the payment was meant to achieve. A payment made without this kind of contemporaneous documentation loses the protection the defence would otherwise offer.

Can a facilitation payment ever relate to winning a new contract or client?

No, this is expressly excluded. A routine government action cannot involve a decision, or even encouraging a decision, about awarding new business, continuing existing business or setting the terms of either. Any payment connected to those things falls outside the defence entirely, however small it may be.

What if the record was lost through no fault of my own?

The Code allows for this. If the record was lost or destroyed because of another person’s actions or a non-human event, entirely outside your control and you couldn’t reasonably have been expected to prevent it and the defence can still apply, provided the other requirements are met.

Is there a time limit that affects this defence?

Yes, in a way. If a prosecution for the offence is brought more than 7 years after the conduct occurred then in that case the record retention requirement is treated as satisfied even without the original record being produced, recognizing that record-keeping obligations can’t reasonably extend indefinitely.

If you are facing an allegation involving a payment you believe qualifies as a facilitation payment, or are unsure whether your conduct falls within this narrow defence, contact Doogue + George’s criminal lawyers in Melbourne to discuss your case.

What is a Facilitation Payment in a Bribery Case?