Measures against corruption
Anti-corruption and bribery
The Australian Government supports ethical business practices, and the prosecution of those who engage in illegal practices. This helps to improve Australia's investment opportunities overseas and is an important aspect of Australia's global reputation.
The bribery of foreign public officials, whether committed in Australia or by Australians overseas, undermines the reputation of all Australian businesses and impacts negatively on business and government relations.
There are consequences for Australians and Australian companies that engage in corrupt activities while overseas. Australian companies and individuals that bribe officials in foreign countries can be prosecuted both under Australian law and under the laws of foreign countries.
Foreign bribery offences
Bribing, or attempting to bribe, a foreign public official is a serious crime, subject to severe penalties. Australian companies or individuals that bribe an official in a foreign country can be prosecuted under Australian law and the laws of foreign countries.
Under Australian law, it is an offence to bribe a foreign public official even if a bribe may be seen to be customary, necessary or required in the situation, and even if there is official tolerance of the bribe.
The maximum penalty for an individual is 10 years imprisonment and/or a fine of 10,000 penalty units (that is, $1.1 million). For a body corporate, the maximum penalty is the greater of the following three amounts: 100,000 penalty units ($11 million); 3 times the value of the benefits obtained (if calculable); or 10% of the previous 12 month's turnover of the company concerned.
Companies should be aware that they may be liable for the actions of their employees and agents under anti-foreign bribery laws. This may include circumstances in which the bribery of foreign public officials was encouraged or tolerated or where there was a failure to create and maintain a corporate culture that required compliance with anti-foreign bribery laws.
These penalties reflect the serious nature of bribery and the detrimental effect it has on Australia's trade and reputation, as well as international governance.
The Attorney-General's Department provides further information on the offence of foreign bribery, including a Foreign Bribery Information and Awareness Pack.
Recent Developments: Assessing the 'facilitation payments' defence under Australian Foreign Bribery law
On 15 November 2011, the Minister for Home Affairs, the Hon Brendan O'Connor MP, launched a public consultation paper to seek stakeholder views on possible changes to Australia's anti-foreign bribery laws. The Australian Government is committed to stamping out corruption and has a comprehensive anti-corruption system for the public and private sectors.
Even though Australia has an admirable anti-corruption record, it is important to consider possible additional measures, including assessing Australia's anti-bribery laws.
The Government is therefore examining Australia's anti-bribery legislation, in accordance with Australia's commitment to combating corruption at home and abroad and our international obligations.
In particular, the Government is reviewing:
- the treatment of 'facilitation payments' under Australian law
- the factors that influence whether a benefit is 'legitimately due' to the recipient
- the current requirement to identify a particular foreign public official in order to establish an offence, and
- the role of dishonesty in domestic corruption offences.
The opportunity to make submissions in response to the public consultation paper, released by the Attorney-General's Department on 15 November 2011, have now closed. The Attorney-General's Department is in the process of considering the views expressed during the public consultation period.
Department of Foreign Affairs and Trade - our commitment
Foreign bribery and other types of corruption skew competition, inhibit business growth and ultimately shrink the global market for Australian exports and investment.
DFAT recognises that corruption creates market access barriers for Australian companies. The Australian Government can assist Australians and Australian companies to repel corrupt approaches from foreign public officials by working closely with foreign governments to improve governance and accountability.
Any Australian or Australian company that encounters a corrupt approach, and is unable to repel such an approach through its own efforts, is encouraged to contact the relevant Australian diplomatic mission for assistance.
Officials from the Department of Foreign Affairs and Trade have a responsibility, under the Australian Public Service Values, the Code of Conduct and the DFAT Code of Conduct for Overseas Service, to report instances involving Australians or Australian companies that could reasonably be suspected of amounting to a breach of an Australian extraterritorial offence (that is, serious Australian offences that apply in a different jurisdiction overseas) to the Australian Federal Police.
The Attorney-General's Department provides further information on the range of international instruments and meetings in which Australia participates – see Corruption.
International anti-corruption efforts
Global corruption is far-reaching and deeply damaging. It undermines efforts against poverty and disease and facilitates serious transnational crimes. Corruption also harms investment and economic growth.
Australia is a party to a number of international instruments aimed at combating corruption:
- the United Nations Convention against Corruption (UNCAC);
- the United Nations Convention against Transnational Organised Crime (UNTOC);
- the Organisation for Economic Cooperation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the Anti-Bribery Convention).
Australia's obligations under the UNCAC and the Anti-Bribery Convention include making foreign bribery an offence and prosecuting the individuals and companies who engage in it.
United Nations Convention against Corruption
The United Nations Convention against Corruption is the first binding global instrument aimed at combating corruption. It establishes mechanisms for the prevention and criminalisation of corruption, as well as for international cooperation and asset recovery.
Australia ratified the UNCAC in December 2005. Since this time Australia has been an active participant in the Conference of the State Parties to the Convention.
OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions
The OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the Anti-Bribery Convention) establishes legally binding standards to criminalise bribery of foreign public officials in international business transactions. Australia ratified the Convention in 1999. The OECD Working Group on Bribery in International Business Transactions is responsible for monitoring the implementation and enforcement of the OECD Anti-Bribery Convention, the 2009 Recommendation on Further Combating Bribery of Foreign Bribery in International Business Transactions and related instruments.
The Australian Government is also committed to promoting the use of the OECD Guidelines for Multinational Enterprises and their effective and consistent implementation through the Australian National Contact Point (ANCP). The Guidelinesprovide voluntary principles and standards for responsible business conduct in a variety of areas including human rights, anti‑corruption, taxation, labour relations, environment, information disclosure, and consumer protection.
Review of Australia's implementation of the United Nations Convention against Corruption (UNCAC) commenced in 2011, through self-assessment and peer assessment processes, and will continue into the first half of 2012. The UNCAC Implementation Review Mechanism requires States Parties to undergo review on their compliance with the Convention every five years.
The OECD will also review Australia's practices in 2012, in accordance with our implementation of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions.
The Attorney-Generals' Department leads Australia's engagement in the UNCAC review process.
The Attorney-General's Department leads Australia's engagement in the OECD Working Group on Bribery in International Business Transactions.
Further information and guidance for Australian individual and companies in relation to the OECD Guidelines for Multinational Enterprises can be found at the ANCP website.