Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999
No. 43, 1999
An Act to amend the Criminal Code Act 1995, and for other purposes
Contents
1 Short title...................................
2 Commencement...............................
3 Schedule(s)..................................
Schedule 1—Amendment of the Criminal Code Act 1995
Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999
No. 43, 1999
An Act to amend the Criminal Code Act 1995, and for other purposes
[Assented to 17 June 1999]
The Parliament of Australia enacts:
1 Short title
This Act may be cited as the Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999.
2 Commencement
(1) Subject to subsection (2), this Act commences on a day to be fixed by Proclamation.
(2) If this Act does not commence under subsection (1) within the period of 6 months beginning on the day on which this Act receives the Royal Assent, it commences on the first day after the end of that period.
3 Schedule(s)
Each Act that is specified in a Schedule to this Act is amended or repealed as set out in the applicable items in the Schedule concerned, and any other item in a Schedule to this Act has effect according to its terms.
Schedule 1—Amendment of the Criminal Code Act 1995
1 After section 3
Insert:
3A External Territories
The Criminal Code extends to every external Territory.
3B Offshore installations
An installation (within the meaning of the Customs Act 1901) that is deemed by section 5C of the Customs Act 1901 to be part of Australia is also taken to be part of Australia for the purposes of the Criminal Code.
2 The Schedule (after Chapter 2 of the Criminal Code)
Insert:
Chapter 4—The integrity and security of the international community and foreign governments
Division 70—Bribery of foreign public officials
70.1 Definitions
In this Division:
benefit includes any advantage and is not limited to property.
business advantage means an advantage in the conduct of business.
control, in relation to a company, body or association, includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
duty, in relation to a foreign public official, means any authority, duty, function or power that:
(a) is conferred on the official; or
(b) that the official holds himself or herself out as having.
foreign country includes:
(a) a colony or overseas territory; and
(b) a territory outside Australia, where a foreign country is to any extent responsible for the international relations of the territory; and
(c) a territory outside Australia that is to some extent self‑governing, but that is not recognised as an independent sovereign state by Australia.
foreign government body means:
(a) the government of a foreign country or of part of a foreign country; or
(b) an authority of the government of a foreign country; or
(c)
Overview
The Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 was enacted by the Parliament of Australia to address the gap in national legislation concerning the bribery of foreign public officials. The problem it sought to address was the lack of specific laws that criminalised such acts, despite Australia's commitments under international agreements like the OECD Anti-Bribery Convention. The Act amends the Criminal Code Act 1995 to introduce provisions targeting bribery in the international arena, aiming to uphold the integrity and security of the international community and foreign governments. By extending the Criminal Code to external territories and offshore installations, the Act ensures comprehensive coverage across Australian jurisdictions and assets. The primary policy objective is to deter and penalise acts of bribery that undermine Australia's reputation and interests in global commerce and diplomacy.
Scope and Application
The Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 applies to individuals and entities engaging in conduct that constitutes the bribery of foreign public officials, whether within or outside Australia. This Act is a legislative amendment to the Criminal Code Act 1995, and it specifically targets bribery offenses involving foreign public officials, including employees, officials, and intermediaries of foreign government bodies and public international organisations. The Act's jurisdiction extends to Australia, its external territories, and Australian citizens and residents regardless of where the alleged offence occurs. Notably, the Act does not apply to conduct that is lawful in the foreign public official's country, nor does it criminalise facilitation payments of a minor nature for routine government actions, provided certain conditions are met, such as the value of the benefit and the keeping of requisite records. The Act also includes provisions for the commencement of the legislation and specifies that it does not exclude or limit the operation of other laws. The Attorney-General's written consent is required before proceedings can be commenced for offences occurring wholly outside Australia, although arrest, charging, and bail processes can proceed before consent is given.
Key Provisions
- The main operative sections of the Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 (the Act) establish the scope of the bribery offence and the defences available. Section 70.2 (subsection 70.2(1)) makes it an offence to provide, offer, or promise a benefit with the intention of influencing a foreign public official in the exercise of their duties, in order to obtain or retain business or a business advantage that is not legitimately due. The definition of "benefit" (subsection 70.1(1)) includes any advantage, not limited to property, and "business advantage" means an advantage in the conduct of business. Section 70.3 provides a defence if the conduct was lawful in the country where the foreign public official is based (subsection 70.3(1)), and section 70.4 provides a defence if the benefit is of minor nature and the conduct was for the sole or dominant purpose of expediting or securing the performance of a routine government action of a minor nature (subsection 70.4(1)).
- The Act imposes obligations on individuals and entities to refrain from offering or providing benefits to foreign public officials with the specified intention, and to ensure that any minor facilitation payments made for routine government actions are properly recorded and retained. Under section 70.5, a person does not commit an offence unless the conduct occurs in Australia, on an Australian aircraft or ship, or if the person is an Australian citizen or resident, or a body corporate incorporated in Australia, and the conduct occurs outside Australia. Additionally, section 70.6 clarifies that the Division is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.
- The Act provides for significant penalties for breaches of the bribery provisions. Section 70.2(1) states that a person who commits the offence is guilty of a criminal offence and is liable to imprisonment for 10 years. Section 4B of the Crimes Act 1914 allows a court to impose a fine instead of imprisonment or in addition to imprisonment. The maximum penalty for breaching these provisions is thus 10 years imprisonment and/or a fine. Furthermore, section 70.5(2) requires the Attorney-General’s written consent for proceedings to be commenced for an offence occurring wholly outside Australia, if the alleged offender is a resident of Australia but not an Australian citizen, although arrest, charge, remand, or bail may occur before such consent is given.
- Area of Law
- Criminal Law
- Instrument
- Act
- Concepts
- Commencement Provisions
- Offence Provisions
- Defences
- Territorial and Nationality Requirements