Generally speaking bribery is where a benefit is given, received or attempted to be received or obtained in return for an improper advantage.
“Benefit” includes property, advantage, service, entertainment, the use of or access to property or facilities, and anything of benefit to a person whether or not it has any inherent or tangible value, purpose or attribute.
In Australia this conduct is prohibited by Commonwealth and State legislation.
The Commonwealth legislation is targeted at bribery offences relating to Commonwealth Public Officials and Foreign Public Officials.
With respect to the Commonwealth legislation, prosecution under the bribery laws can be instituted against any Australian citizen, resident, or entity established in Australia that is alleged to have committed the bribery offence, regardless of whether the offence was alleged to have been committed in Australia.
Penalties – Criminal Code (Cth)
The offence of bribing a Commonwealth or Foreign public official holds the following penalties:
Maximum penalty of up to 10 years imprisonment and/or a fine of up to $1,700,000.
A fine not more than the greatest of the following:
- 3 times the value of the benefit; or
- 10 % of the company's turnover from the 12 months before the offence was committed.
There are essentially two defences to charges under the Commonwealth legislation. They are:
- The local law defence – this defence requires the defendant to show that the act that is the subject of the contravention is actually permitted by the written law of the place where the act occurred.
- Facilitation payments – this is where it can be shown that payments of a minor nature were made with the intention of facilitating the performance of a minor, routine government action, and that benefit was recorded in accordance with the Criminal Code Act 1995.
In Queensland, the Criminal Code (Qld) prohibits the following conduct:
- Member of Parliament Receiving Bribes;
- Bribery of a Member of Parliament;
- Bribery with respect to elections.
Penalties – Criminal Code (Qld)
The penalties in relation to (1) and (2) are imprisonment for 7 years, the member of parliament who is convicted of receiving the bribe is also disqualified from sitting or voting as a member of the Legislative Assembly for 7 years.
Further, where a person has been convicted of an offence under (2), all property which has been tendered or produced in evidence at the trial of the offender, as being the property or part of the property which the offender in the course of the commission of such offence gave, conferred or procured, or promised or offered to give, or confer or to procure, or attempt to procure, to, upon, or for a member of the Legislative Assembly, or to, upon, or for any other person, shall become and be deemed to have become forthwith upon such conviction and without any further judgment or order the absolute property of the Crown, whether such property is the property of the offender or of any other person.
With respect to (3) the penalty is imprisonment up to 7 years or alternatively up to 1 year depending on if the offender is charged under section 98C or section 101.
Bribery charges are very serious and can be devastating a person’s liberty and future livelihood and reputation. If you find yourself being investigated or if you have been charged, it is very important that you get the right legal advice in a timely manner – the earlier your legal team is engaged the better.