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Australian anti Bribery Laws

The Australian Federal Government (the Commonwealth) has laws prohibiting bribery of federal officials2, as well as laws prohibiting bribery of foreign officials. On 18 October 1999, Australia ratified the Organisation for Economic Co-operation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (Anti-Bribery Convention). Following Australia`s adoption of the Anti-Bribery Convention, the Penal Code Act 1995 (Cth) was amended to prohibit bribery of a foreign public official.2 Domestic bribery against the Commonwealth and foreign bribery offences are both included in the Penal Code.3 AFP and the Australian Government have responded to the OECD Phase 3 report with a number of initiatives. These include the inclusion of AFP in a Memorandum of Understanding with ASIC on collaborative working arrangements and information exchange; the establishment of Special Anti-Fraud and Corruption (FAC) teams by AFP in five capitals; and the establishment of an ACS centre to improve coordination between authorities, develop standards and procedures for fraud investigations and anti-corruption, and train investigators. In May 2013, AFP, in collaboration with the U.S. Federal Bureau of Investigation, the Royal Canadian Mounted Police and the Foreign Bribery Unit of the City of London Police in the United Kingdom, signed a Memorandum of Understanding to establish an International Working Group on Foreign Bribery to combat foreign bribery. The Working Group should enable those countries to work together to strengthen investigations into crimes of foreign bribery; the exchange of knowledge, skills, methodology and survey techniques; and exchange information and techniques of good practice. 9 Australia has played an active role in the Asian Development Bank`s OECD Anti-Corruption Initiative for the Asia-Pacific region since October 2003, and in November 2004 endorsed Santiago Santiago`s commitment to the Asia-Pacific Economic Cooperation (APEC) to fight corruption and ensure transparency, as well as APEC`s approach to anti-corruption and transparency. We could finally see the creation of a federal anti-corruption agency, as well as a potentially significant reform of Australia`s corporate criminal liability system. As enforcement efforts to enforce the anti-corruption regime gain momentum and the regime itself becomes more sophisticated, australian authorities are increasingly resorting to parallel investigations and cooperating with foreign authorities, both in general and in specific cross-border investigations. There are no specific laws on commercial or private bribery in Australia, although various state laws are broad enough to cover corrupt behaviour. There is no offence of private to private bribery committed by the Commonwealth in Australia.

However, private bribery, bribery and secret commissions are criminal offences under some Australian state and territory laws. In the state of New South Wales, for example, this is regulated by the Crimes Act 1900 (NSW) (the “Crimes Act”). The misrepresentations described in section 1.1 above may also apply. Legislation in states and territories varies in terms of the penalties that can be imposed for corruption in the private sector. In general, individuals face a prison sentence ranging from three to 21 years.10 Under the New South Wales Crimes Act, a person can be imprisoned for up to seven years and can also be ordered to repay in whole or in part the value of any benefit received or granted by that person. He may also be excluded from the exercise of a civil office for a maximum period of seven years. When corruption is committed by a company, some jurisdictions provide for fines instead of imprisonment. Section 11.2 of the Criminal Code (which extends criminal liability) has been amended to include “knowingly affected” as an additional form of liability. A number of criminal appeal judgments have highlighted the vacuum in criminal law, which the courts consider Parliament did not intend to do by not “knowingly affecting” as a ground for secondary criminal responsibility. This means that persons who are knowingly and intentionally involved in the commission of a criminal offence (against all Commonwealth laws in which the offences traditionally involve other persons or secondary persons) will be held liable for the predicate offence. The international tide is shifting against aid payments, and although Australia has been slow to address this issue, the views of the Senate carry considerable weight, and the Australian government should take immediate steps to abolish the defence against the payment of foreign bribery relief. In addition, many companies have acted independently of legal requirements, especially those that have been the subject of allegations and investigations related to foreign bribery in recent years.

For example, in August 2015, CIMIC Group Limited (CIMIC) (formerly Leighton Holdings, which has long been the subject of a foreign bribery investigation by AFP) published a revised Code of Conduct that provides: 147 See www.ag.gov.au for a discussion of Australia`s international anti-corruption obligations. Companies can be held criminally liable for bribes committed by their employees, managers or agents. The Australian Capital Territory and the Northern Territory have adopted the expansive Commonwealth model (described above with respect to foreign bribery). In other states, corporate liability is only likely to arise if a spirit or will of the business – usually a director or officer – is involved in the crime. The penalties for individuals and companies that violate the new whistleblower laws are as follows: 80 Mr Waugh, a former senior executive at Leighton Offshore Pte Ltd, has since been charged with foreign bribery and other offences related to an investigation into alleged A$1 billion international bribery involving Iraqi officials (November 2020) and separate allegations, that he conspired to pay A$4 million in bribes to senior Tanzanian officials in order to secure a lucrative contract for his business. This is part of AFP Trig and Amber`s operations. In November 2011, AFP received a report from Leighton Holdings Limited about alleged inappropriate payments from singapore-registered business unit Leighton Offshore Pte Ltd in connection with two contracts with Iraq Crude Oil Export in 2010 and 2011. Two others have been charged and the trial continues. In December 2018, corruption cases for the printing of Securency banknotes were finally closed and the remaining Australian non-publication or deletion orders were lifted. Following the Supreme Court`s decision to permanently stay the proceedings against four people and the last person to plead guilty, the various verdicts and court decisions became public. Between 2011 and 2018, the two subsidiaries of the Reserve Bank of Australia hired agents in Indonesia, Malaysia, Vietnam and Nepal to secure valuable banknote printing contracts, paying bribes to officials in those countries.

The companies, along with five convicted persons, pleaded guilty to criminal conduct85 but were released on conviction following probation of their prison terms.86 While the Reserve Bank of Australia sought to point out that the boards of directors of its two subsidiaries were not involved or unaware of the illegal conduct,87 and AFP considered the case a singular success, Australian dishes were anything but impressed. Australia`s federal corruption laws generally deal with bribery related to public officials, while state and territorial laws apply to both bribery of public officials and private or commercial bribery. These laws exist in law and at common law. The second charge under Australia`s foreign anti-corruption laws was filed by AFP in February 2015 against two directors of an Australian construction company, Lifese. The administrators were charged with conspiracy to bribe a foreign official under construction contracts in Iraq. A third man was also charged. Much of the evidence relied on by the prosecution came from intercepted telephone conversations. All three men pleaded guilty. The directors were sentenced to prison terms of three years and four months (with a non-parole sentence of one year and eight months) (Elomar v R [2018] NSWCCA 224). As of March 2016, there were no specific Commonwealth laws governing corruption or corruption cases, with the exception of requirements to keep certain records of relief payments. 16 See www.aph.gov.au/Parliamentary_Business/Committees/Senate/Economics/Foreignbribery45th/Report. If the Crimes Act is passed, there will be three important reforms regarding bribery and bribery, namely: In its two-year follow-up report to the Phase 4 report, the OECD Working Group commended Australia for fully and partially implementing a number of recommendations from its Phase 4 report, including the introduction of better protection for private sector whistleblowers.

Increase AFP`s budget for foreign bribery investigations and take steps to improve the detection of foreign bribery through its money laundering system.14 However, the Working Group noted that all of its previous recommendations had not yet been implemented and expressed concern about the low level of enforcement of foreign bribery in Australia given the size of its economy and high-risk regions and sectors. in which its companies operate. In particular, she said Australia`s low number of cases against companies was “very worrying” and hoped Australia would tackle its long-standing challenges by attributing fault to companies.

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