Convention on Combating Bribery of Foreign Public Officials

The Organisation for Economic Cooperation and Development (OECD) Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (the Convention) was developed in response to recognise the need to address the problem of foreign bribery on a multilateral cooperation by all countries.

All government employees when either travelling overseas or dealing with clients from overseas, must consider whether the actions of their clients, should they have the intention of influencing a foreign public official in the exercise of the official’s duties, in order to obtain or retain business or obtain or retain a business advantage which is not legitimately due, could be considered as bribery of a foreign public official. The Department of Industry, Innovation, Science, Research and Tertiary Education endeavours to minimise any opportunity of fraudulent and corrupt behaviour, and has obligations when dealing with international clients.

Australia’s international obligations

Australia signed the Convention on 7 December 1998 which was ratified on 18 October 1999. The Convention entered into force for Australia on 18 December 1999. Australia’s legislation came into force on 17 December 1999.

Australia’s implemented legislation for the Convention is contained in Division 70 of the Criminal Code Act 1995 (Cth). The legislation has a number of elements which can be divided into three components. All of the elements must be present for the offence to apply. A person is guilty of an offence if:

  • the person provides a benefit to another person
  • offers or promises to provide a benefit to another person, or
  • causes a benefit to be provided, offered or promised to another person

And

  • the benefit is not legitimately due to the other person

And

  • step 1 was carried out with the intention of influencing a foreign public official (who may or may not be the other person) in the exercise of the official’s duties as a foreign official in order to obtain or retain business or obtain or retain a business advantage which is not legitimately due.

The offence applies where the conduct constituting the offence occurs wholly or in part in Australia, or wholly or in part on board an Australian aircraft or an Australian ship. The offence also applies to conduct committed wholly outside Australia in three situations. This is where, at the time of the alleged offence, the person who is alleged to have committed it, is:

  • an Australian citizen
  • a resident of Australia, or
  • a body corporate by or under a law of the Commonwealth or of a State or Territory.

The offence applies regardless of the outcome or result of the bribe or the alleged necessity of the payment.

Benefits

A foreign public official does not need to be provided or offered the benefit, it can be provided or offered to another person. A benefit is any advantage and is not limited to property. A benefit can be a nonmonetary or non-tangible inducement. A benefit can also be provided or offered by an agent.

Foreign public official

The definition of a ‘foreign public official’ is very broad, and includes:

  • an employee / official of a foreign government
  • a member of the executive, judiciary or magistracy of a foreign country
  • a person who performs official duties under foreign law
  • a member / officer of the legislature of a foreign country, or
  • an employee / official of a public international organisation (such as the United Nations). 

Penalties

The maximum penalty for an individual is ten (10) years imprisonment and/or a fine of 10,000 penalty units, that is, $1.1 million.

Higher penalties apply for a body corporate, which are calculated according to the value of benefits obtained from bribery, or the annual turnover of the company.

The high penalties for foreign bribery reflect the seriousness of bribery and its consequences. In addition to criminal penalties, any benefits obtained by foreign bribery can be forfeited to the Australian Government under the Proceeds of Crime Act 202 (Cth).

Companies and individuals engaging in bribery may be liable under the laws governing the foreign public official and may be liable under the laws of third-party countries.

Suspect bribery

Should a departmental employee suspect that bribery of a foreign public official to have occurred, the employee must notify their supervisor or the Fraud Control Officer (FCO) as soon as practicable.

If you are travelling overseas and need more information or wish to discuss, please contact the FCO on: