Bribery is a widely accepted and well-known crime. It is not unique to Australia, and most consider it a pretty easy crime to identify. However, as with all crimes, there are grey areas. Occasionally, during the course of business, company owners or representative might find themselves in those grey areas. More concerningly, some might find themselves there quite accidentally. It’s important that all business owners are familiar with the laws governing their behaviour. Such familiarity encourages honest business practices, and protects against criminal sanctions. To promote familiarity with, and understanding of, bribery offences, here are some important points on bribery under the Commonwealth Criminal Code.

The grey areas of influence: when does seeking favour become a bribery offence?

Influence and business are closely connected. Almost constantly, business owners are trying to influence consumers, suppliers, and even each other. It is not uncommon, as well, for business owners to try and influence governments. Often, government members and officials receive gifts, donations, invitations, and more. Just as often, too, those exchanges are completely legal. However, it is not hard for gifts, donations, and invitations to cross the line into bribery. Bribery offences are serious, and often punishable by lengthy terms of imprisonment. Avoiding them, then, is a matter of priority for all business owners, and doing so requires knowledge of what actions constitute bribery.

In deciding bribery offences, the law pays attention to intention

Intention is a relevant factor in bribery offences. Bribery, as according to Division 141 of the Commonwealth Criminal Code, could be summarised as dishonestly intending to influence a public official in the exercise of the official’s duty as a public official. That could take many forms, and not all would require a gift of money. Notably, though, Division 141 distinguishes gifts, gratitude, and bona fide donations from bribery, notwithstanding that the relevant actions might be the same. That is a point of confusion for many business owners. But it may be clarified on the terms offered by Division 141, specifically, the term ‘dishonestly.’ A gift given to a public official with dishonest intentions is almost certainly a bribe.

Providing a benefit: what actions fall within laws against bribery?

There are many ways in which a benefit might be given to a public official in the form of a bribe. To avoid circumvention, though, anti-bribery laws cast a wide net. Any conceivable way of bribing an official is encompassed by the language of Division 141 of the Commonwealth Criminal Code. Division 141’s description of bribery includes providing a benefit, causing a benefit to be provided, offering to provide a benefit, and causing an offer to provide a benefit, to a public official. That description is deliberately broad, and leaves little in the way of loopholes. Owing to that provision’s broadness, business owners must be careful in their dealings with public officials. Most importantly, the provision of benefits must never be apprached as an avenue through which to influence public officials, regardless of how indirect those benefits might be.

Commonwealth anti-bribery laws don’t require knowledge that a recipient is a government official

Notably, the Commonwealth Criminal Code does not require knowledge that an individual is a public official. As a result, attempts to influence public officials through the provision of benefits amounts to bribery even if the offeror is unaware that the offeree is a public official. To some, that might seem needlessly punitive. However, the purpose of that provision is not necessarily the indiscriminate prosecution of those who fall inadvertently within the scope of Commonwealth anti-bribery laws. Rather, that provision’s principal purpose is to deny defences that centre on mistake. In reality, dishonest attempts to gain influence over public officials are made for the sole reason that public officials wield powers capable of lending advantage to certain businesses. There would be little purpose to gaining influence over non-government officials, who can offer few unique advantages to businesses. There is therefore a negligible likelihood of inadvertent bribery in that regard.

There are steps that can be taken to prevent bribery offences being committed in an organisation

There are bribery offences at both state and Commonwealth levels. The premise of all bribery offences, though, remains largely the same: to prevent individuals and companies from gaining undue influence over public officials, and any unfair advantages that may result. Falling foul of anti-bribery laws can result in serious consequences. So, when seeking to offer benefits to public officials, care is vital. Accessing qualified and professional legal advice before offering political donations, gifts, or invitations is a prudent approach to take. Doing so will galvanise the boundaries between acceptable, and unacceptable commercial conduct.

By Finian McGrath



The information provided by Kafrouni Lawyers is intended to provide general information and is not legal advice or a substitute for it. Business people should always consult their own legal advisors to discuss their particular circumstances. Kafrouni Lawyers makes no warranties or representations regarding the information and exclude any liability which may arise as a result of the use of this information. This information is the copyright of Kafrouni Lawyers.

Liability limited by a scheme approved under professional standards legislation.