Report No. 258
32 The information on Australia has been taken from the Executive summary on Australia, Note by the Secretariat, Third Session of the Implementation Review Group, Conference of the States Parties to the United Nations Convention Against Corruption, UN Doc. No. CAC/COSP/IRG/I/2/1 (2012); see also page on 'Foreign bribery', website of the Attorney-General's Department, Australian Government, available at
http://www.ag.gov.au/CrimeAndCorruption/Foreignbribery/Pages/default.aspx, last visited on 8th August, 2015.
3.2.1 The UNCAC was signed by Australia in 2003 and subsequently ratified in 2005. Australia has a federal system of governance with three layers of government: federal, state and local. The agencies involved in tackling corruption in Australia include the Australian Commission for Law Enforcement Integrity, the Australian Crime Commission and the Commonwealth Ombudsman and the Australian Federal Police. In addition to these agencies, the Australian government also attempts to address corrupt conduct in an overarching manner.
3.2.2 For implementing its obligations under clause (a) of Article 15 of the UNCAC, section 141.1 of the Australian Criminal Code outlaws the bribery of a Commonwealth public official and covers a wide array of officials at the federal level and a wide range of conduct including the giving of benefits, obtaining gains or causing losses. In consonance with clause (b) of the Article 15, section 141.1 also criminalises the acceptance of an undue advantage by a public official in exchange for influence, either actual or perceived, on the exercise of his official's duties.
3.2.3 Division 70 of Chapter 4 of the Australian Criminal Code covers bribery of foreign public officials and officials of public international organisations in the context of Article 16. However, only active bribery of foreign public officials and officials of public international organisations as discussed under paragraph 1 of Article 16 of the UNCAC is penalised under Division 70. Passive bribery of such officials under paragraph 2 of Article 16 does not constitute a criminal offence under the Australian Criminal Code..
3.2.4 In the context of jurisdiction under Article 42 read in conjunction with Article 4 of the UNCAC, the Australian anti-bribery law broadly applies to all conduct within Australia, and to the conduct by Australian citizens, residents and companies overseas. While all payments are covered under the foreign bribery statute in Australia, facilitation payments made to expedite or to secure the performance of a routine governmental action by a foreign official, political party or party official are exempt from penalisation.
For identifying a transaction as a facilitation payment and not bribery, the Australian law requires the benefit received to be 'of a minor value' and to be offered 'for the sole or dominant purpose of expediting or securing performance of a routine government action of a minor nature'. The proceedings of the transaction are also required to be recorded. In addition to this, Australian law also exempts those gifts and advantages that are specifically permitted under the written law governing the foreign public official and the official of a public international organisation in question.