CRIMINAL CODE AMENDMENT (BRIBERY OF FOREIGN PUBLIC OFFICIALS) BILL 1998
(Circulated by authority of the Minister for Justice,
Senator the Honourable Amanda Vanstone)
The Bill amends the Criminal Code Act 1995 by inserting the offence of bribing a foreign public official. The effect of the Bill is:
In December 1996 the United Nations General Assembly adopted a Declaration Against
Corruption and Bribery in International Business Transactions. Following this
in May 1997 the OECD Ministerial Council recommended that measures to combat
bribery in international business transactions, including the criminalisation
of bribery of foreign public officials, be introduced to the legislative process
in each country by 1 April 1998. The recommendation was endorsed by the Australian
Government.
The Government accepts that bribery of foreign public officials in the course
of international trade is unacceptable. While the Government considers that
Australian business has high ethical standards, it is important that Australia
maintains a good reputation by supporting the OECD in this initiative and therefore
benefiting from the improvements it should bring to world trade. In particular,
a reduction in the role played by bribery should result in more merit based
commercial decisions. This will advantage Australia because as a rule its businesses
are competitive.
The OECD Convention and its Commentaries provide details on the elements of
the proposed offence, so the scope for varying the Bill is limited.
The Bill consists of one offence - section 14.1:
Subclauses 14.1(1) - (3)
Subclause 14.1(1) creates the offence and sets out the elements summarised above.
Subclause 14.1(2) extends it to every external Territory and subclause 14.1(3)
provides the jurisdictional link that for the offence to apply some of the conduct
described in it must occur in Australia.
Subclauses 14.1(4) and (5)
Subclauses 14.1(4) and (5) are both definitional in that they set out matters
which must be disregarded in determining whether a benefit caught by the offence
is `undue'' (subclause 14.1(4)) or whether an advantage caught by the offence
is `improper' (subclause 14.1(5)).
Subclause 14.1(6)
Subclause 14.1(6) sets out the terms of the defence of lawful conduct in the
foreign public official's country. The table in the subclause prescribes the
method by which the applicable law is determined. The source of applicable law
will differ according to the nature of the connection of the officer with the
foreign government or international organisation.
Subclauses 14.1(7A)/(7B)and (7C)
These subclauses provide for a defence that the payment was in the nature of
a small `facilitation' benefit and set out for consultation purposes alternative
criteria as to how the Parliament might exclude these from the scope of the
offence. The Commentaries to the OECD Convention indicate that small `facilitation'
benefits are not intended to be covered by the offence.
Subclause 14.1(8)
This subclause contains important terms which delineate the scope of the offence
such as what is a `benefit' or `duty', `foreign government body', `foreign public
enterprise', `foreign public official' and `international organisation'.
Subclause 14.1(9) - (12)
These subclauses govern the application of the ancillary offence provisions
in the Criminal Code to the proposed offence. They ensure that the ancillary
offences of attempt, complicity, incitement and conspiracy which occur outside
Australia apply where they relate to conduct included in the primary offence
(subclause 14.1(1)) which occurred or was planned or expected to occur at least
partly within Australia;
The Bill is expected to have little impact on Commonwealth expenditure or revenue.
The following information is provided in accordance with Guidelines provided
by the Office of Regulation Review, Industry Commission.
A. Problem identification and objective
This regulatory initiative seeks to prohibit under Australian law the bribery
of foreign public officials by Australian companies or officials. The initiative
is in response to the OECD Convention and the 16 December 1996 UN Declaration
Against Corruption and Bribery in International Commercial Transactions.
B. Identification of Options
One of the OECD initiatives is to criminalise bribery of foreign public officials.
The available option which faced Australia was whether it would support this
Recommendation.
As a member of the OECD and the UN, Australia is required to respond to the
OECD Convention and UN Declaration.
Rejection of OECD Convention
The main argument in favour of not supporting the OECD Convention is that competitiveness
of Australian business may be reduced if bribery of foreign public officials
is criminalised, because many of our business competitors will not pass or enforce
laws of this nature.
Acceptance of OECD Convention
The main argument in favour of accepting the OECD Convention is that if countries
take action on a multilateral basis to criminalise foreign bribery, serious
distortion of trade could be prevented that could otherwise occur if purchasing
decisions are made on the basis of the size of the bribe, rather than on the
merits of a product or service.
Bribery is a serious international issue and it is in the interests of all countries
to prevent the serious distortion of trade that could result if foreign bribery
is not prevented.
C. Conclusion and Recommended Option
The recommended option is that Australia take appropriate steps to support the
OECD Convention that bribery of foreign public officials be criminalised.
D. Impact Analysis
Impact Group Identification
The proposed changes will potentially impact on all Australian businesses operating
internationally.
Assessment of Costs and Benefits
The proposed provisions will criminalise the bribery of foreign officials. It
is not possible to assess the costs and benefits as it is uncertain how much
trade depends on the payment of bribes to foreign officials. For example, it
has been suggested that the cost could be significant if our competitors will
not pass or enforce the proposed laws. However, others take the longer term
view and recognise that free trade is being undermined by the bribery of officials
because purchasing decisions could be determined by the size of bribes rather
than the merits of the product or service for sale.
Restrictions on competition
The proposal is designed to free up competition by eliminating bribery as a
hidden factor in world trade.
Trade Impact Assessment
It is not possible to be certain of the short term impact. Some believe the
proposed course of action is likely to compromise the capacity of Australian
commerce and industry to compete in existing and emerging foreign markets, especially
those outside the limited membership of the OECD, and against the aggressive
exporters and investors from non-OECD countries. However, if countries move
together on this issue, it should prevent serious distortion of trade that could
result if purchasing decisions are not made on the merits of a product or service
but on the size of the bribe.
E. Other Requirements
[This segment will record the results of consultation in the form of
`consultation statement'.]
Clause 1: Short Title
1. This clause provides for the short title of the Act.
Clause 2: Commencement
2. Subclause 2(1) provides that the Act commences on Proclamation, but not
earlier than the day on which the Convention enters into force in Australia.
This reflects an appropriate order of events in recognition of the Government's
commitment to the process of properly examining the effect of treaties before
they are ratified.
3. Subclause 2(2) provides that if the Act is not proclaimed earlier, it will
commence 6 months after the Convention enters into force. This will provide
the Government some flexibility about the date of commencement to ensure there
is adequate awareness of the new provisions, however at the same time it avoids
the undesirable outcome of having unproclaimed legislation on the statute book
for too long.
Clause 3: Schedules
4. This clause provides that the Act specified in the Schedule to this Act,
the Criminal Code Act 1995, is amended as set out in the Schedule.
SCHEDULE 1
AMENDMENT OF THE CRIMINAL CODE ACT 1995
Item 1: The Schedule - Chapter 3 - Offences
5. This item inserts a new Chapter after Chapter 2 of the Criminal Code.
The Criminal Code is contained in the Schedule to the Criminal Code
Act 1995 which, at the time of this Bill, contains Chapter 1 - Codification,
Chapter 2 - General Principles of Criminal Responsibility and a Dictionary.
The new Chapter is titled Chapter 3 - Offences, however in time it is likely
to be renumbered when the Government inserts many other offences, including
new offences like this one, those which will eventually replace those contained
in the Crimes Act 1914 and in some cases elsewhere. While many of the
offences that are to be inserted into the Criminal Code are likely to
mirror the Model Criminal Code (which is being prepared in co-operation with
most State and Territory Governments), some, such as this offence, will vary
from the model because it will be required to do so by the obligations under
the OECD Convention. In other cases there will be variations because of the
peculiar nature of the Commonwealth jurisdiction.
Clause 14.1 - Bribing a foreign public official.
6. Subclause 14.1(1) creates the offence itself and provides that a person is
guilty of the offence if a combination of the elements set out in paragraphs
14.1(1)(a), (b) and (c) can be proved. The elements of the offence set out in
this subclause are those which are contained in Article 1 of the OECD Convention.
7. Paragraph 14.1(a) prohibits a person from providing or causing a benefit
to be provided to another person. It also covers offering to provide, or promising
to provide, a benefit to another person or causing an offer of the provision
of a benefit or a promise of the provision of a benefit to be made to another
person. Consistent with Article 1(1) of the Convention, `benefit' is defined
at subclause 14.1(8) to include any advantage and is not limited to property.
8. In other words the conduct described will be an offence (providing the other
elements of the offence are proved) whether the offer or promise is made or
the pecuniary or non-pecuniary benefit is given on that person's own behalf
or on behalf of any other person. It would, for example, cover the provision
of a benefit to the partner of the foreign public official to influence the
exercise of the official's duties (through the partner).
9. Paragraph 14.1(1)(b) requires that the benefit provided must be an undue
benefit. Subclause 14.1(4) provides that in working out if a benefit is an "undue
benefit" in a particular situation, there should be no regard to the fact that
the benefit may be customary, or perceived to be customary, no regard to the
value of the benefit and no regard to any offical tolerance of the benefit.
In other respects the term is to have its ordinary meaning - the prosecution
must establish that the benefit was not legitimately due to the person who received
it. This element of the offence is required by Article 1(1) of the OECD Convention
and is also consistent with domestic bribery offences.
10. Paragraph 14.1(1)(c) provides that the person who has undertaken the conduct
of providing the undue benefit to another person (who could be the foreign public
official or a third person for example the partner of the official) must do
so with the intention of influencing a foreign public official in the exercise
of the official's duties in order to obtain or retain business (subparagraph
14.1(1)(c)(i)) or in order to obtain or retain an improper advantage in the
conduct of business (subparagraph 14.1(1)(c)(ii)).
11. Subclause 14.1(8) provides that "duty" in relation to a foreign public official,
means any authority, duty, function or power that is conferred on the official
or that the official holds himself or herself as having. Sub-clause 14.1(5)
provides that in working out if an advantage is an "improper advantage" in a
particular situation, there should be no regard to the fact that the advantage
may be customary, or perceived to be customary, or there is any official tolerance
of the advantage. This is generally consistent with the interpretation of "undue
benefit". In other respects the meaning of "improper" is to have its ordinary
meaning. It is a matter for the jury but it would include activities which are
in breach of statutory requirements ( as per paragraph 5 of the Commentaries
on the OECD Convention).
12. The first limb ( subparagraph 14.1(1)(c)(i)) covers the situation where
the intention to influence the official was in order to obtain or retain business.
The focus is firmly on benefits significant enough to influence trade and its
scope is such that on its own it would not include smaller "facilitation" benefits,
(for example, a manager in Australia authorises the payment of a small bribe
of $100.00 to a foreign official to expedite the connection of a single phone
in an office that already has 50 phones). In those circumstances it may be difficult
to prove the connection of one phone was "in order to obtain or retain business."
In May 1997 the OECD considered that this should be the only provision concerning
this aspect of the offence, however the December 1997 OECD Convention added
a second limb which expands the scope of the offence (subparagraph 14.1(1)(c)(ii)
and Article 1 of the OECD Convention and paragraphs 4 and 5 of the Commentaries
on the OECD Convention).
13. The second limb, subparagraph 14.1(1)(c)(ii), covers the situation where
the intention to influence the official was in order to obtain or retain an
improper advantage in the conduct of the business. This is far less specific
and, without the alternative defences drafted at subclauses (7A) and (7C), is
more likely to catch smaller "facilitation" benefits such as the one described
in the example. Assuming it is illegal to make the payment in the country where
the example occurs, it is much more likely that it could be proven that it was
intended to influence the official to obtain an improper advantage in the conduct
of business. The conduct of business is a broader term which includes a wider
range of activities. It is for that reason the proposed defences are limited
to charges relying on this limb of the offence.
14. Subparagraph 14.1(1)(c)(ii) is aimed at the situation where the benefit
is intended to cover a bribe in order to obtain or retain an advantage to which
the person was clearly not entitled. This is demonstrated by the example given
at paragraphs 4 and 5 of the Commentaries to the OECD Convention: a bribe paid
in order to receive an operating permit for a factory where the person has failed
to satisfy the statutory requirements for issue of such a permit. The Convention
authors make it clear that they intend that sort of benefit to be covered by
countries in their implementing legislation.
15. The offence carries a maximum penalty of 10 years imprisonment. As is noted
at the foot of subclause 14.1(1), section 4B of the Crimes Act 1914 allows
a court to impose a fine or a sentence of imprisonment or both and automatically
provides for a maximum fine based on the maximum term of imprisonment. Under
section 4B the fine would be $ 66, 000.00 for an individual and $ 330, 000.00
for a corporation. A maximum of 10 years imprisonment is consistent with the
penalty for theft and fraud and the penalty recommended for the bribery offences
in the Model Criminal Code issued by the Model Criminal Code Officers Committee
of the Standing Committee of Attorneys-General).
16. Subclause 14.1(2) provides that the clause extends to every external Territory
of Australia. This is necessary to ensure these territories are not treated
as foreign countries for the purpose of the offence.
17. Subclause 14.1(3) provides that the conduct element of the offence includes
conduct taking place in Australia and outside Australia subject to the proviso
that at least some of the conduct referred to in subclause 14.1(1)(a) must occur
in Australia. This qualification ensures that jurisdiction in relation to the
offence remains territory based and therefore consistent with the usual approach
to jurisdiction under Australian law. The OECD Convention recognises that countries
may establish jurisdiction over the offence in accordance with their usual principles
but Article 4 of the OECD Convention also makes it clear that countries party
to the OECD Convention should establish jurisdiction when the offence is partly
committed in their territory. Proposed subclause 14.1(3) is consistent with
paragraph 25 of the Commentaries on the OECD Convention which states that "The
territorial basis for jurisdiction should be interpreted broadly so that an
extensive physical connection to the bribery act is not required."
18. This is similar to the approach to jurisdiction taken in State law . For
example paragraph 3A(1)(b) of the New South Wales Crimes Act 1900 provides
that " (1) An offence against the law of the State is committed if ..(b) a territorial
nexus exists between the State and at least one element of the offence." Similarly
subsection 12(2) of the Criminal Code of Queensland provides that
"Where acts or omissions occur which, if they all occurred in Queensland,
would constitute an offence and any of the acts or omissions occur in Queensland,
the person who does the acts or makes the omissions is guilty of an offence
of the same kind and is liable to the same punishment as if all the acts or
omissions had occurred in Queensland."
19. The basis for jurisdiction contained in subclause 14.1(3) is specific to
the bribing of foreign public officials offence. It is likely a general jurisdictional
clause will be included in the Criminal Code when other offences are
inserted.
20. The purpose of subparagraphs 14.1(3)(a) and (b) is to ensure, where the
only part of the conduct which takes place in Australia is the receipt of the
benefit, that this will be sufficient to satisfy the minimum extra-territorial
requirement of the paragraph that at least some of the conduct must take place
in Australia. These 2 subparagraphs are intended to remove any doubt that proof
of receipt of the benefits in Australia or that they would have been received
in Australia, will be sufficient to prove the territorial component of the offence.
An example of where subparagraph (a) would apply is where person A, who is outside
Australia at all material times, arranges for a sum of money to be forwarded
to the bank account in Australia of a foreign public official B in order to
influence B in relation to A obtaining or retaining business. In this instance
it could be argued all of A's conduct in arranging for the transfer of the money
to B's bank account had taken place outside Australia when it is clearly appropriate
there should be a recognised nexus with Australia when the money is received
in B's bank account. Subparagraph (b) is consistent with the policy in relation
to the ancillary offences which is discussed below.
Subclause 14.1(4) - Undue Benefit
21. As explained in relation to subclause 14.1(1), subclause 14.1(4) provides
that in working out if a benefit is an "undue benefit" in a particular situation,
there should be no regard to the fact that the benefit may be customary, or
perceived to be customary, no regard to the value of the benefit and no regard
to any offical tolerance of the benefit. In other respects the term is to have
its ordinary meaning - the prosecution must establish that the benefit was not
legitimately due to the person who received it. This element of the offence
is discussed at paragraph 7 of the Commentaries to the OECD Convention.
22. Any allowance for local cultural norms would undermine the offence. The
provision follows Article 1(1) of the Convention and is also consistent with
domestic bribery offences. However the general defences available under Part
2.5 of the Criminal Code will apply (these defences include duress).
Subclause 14.1(5) - Improper Advantage
23. As mentioned above in this memorandum, subparagraph 14.1(1)(c)(ii) requires
proof that the person must have provided the benefit to influence the foreign
official in order to obtain or retain an improper advantage in the conduct of
business. Subclause 14.1(5) provides that in working out if an advantage is
an "improper advantage" in a particular situation, there should be no regard
to the fact that the advantage may be customary, or perceived to be customary,
or there is any official tolerance of the advantage. This is generally consistent
with the interpretation of "undue benefit". In other respects the meaning of
"improper" is to have its ordinary meaning. It is a matter for the jury but
it would no doubt include activities which are in breach of statutory requirements
(per paragraph 5 of the Commentaries on the OECD Convention).
Subclause 14.1(6) - Defence if conduct lawful in foreign official's country.
24. Paragraph 10 of the Commentaries to the Convention makes it clear that it
is intended that the conduct referred to in subclause 14.1(1) should not be
an offence if the advantage was permitted under the law of the foreign public
official's country. The table in subclause (6) prescribes the source of the
applicable law that will apply to the different classes of foreign public officials.
The nine different classes of officials listed in the table are those which
are contained in the definition of "foreign public official" in subclause 14.1(8).
These include a member of a legislature of the country or anybody employed by,
under contract to, appointed by or otherwise in the service of a foreign government
or an international organisation. Where the nature of the person's service may
involve easy access to mobility across international borders, such as where
the person works for an international organisation, the defence of lawful conduct
is aligned to the place where the central administration of the body is located.
This should work to prevent any of these people and the accused from undermining
the intent of the legislation by deliberately locating themselves in particular
jurisdictions for the purpose of taking advantage of the defence.
Subclauses (7A) and (7C) -Alternative defences - facilitation benefits
25. Paragraph 9 of the Commentaries to the OECD Convention states:
`Small
"facilitation" payments do not constitute payments made "to obtain or retain
business or other improper advantage" within the meaning of paragraph 1 and,
accordingly, are also not an offence. Such payments, which, in some countries,
are made to induce public officials to perform their functions, such as issuing
licences or permits, are generally illegal in the foreign country concerned.
Other countries can and should address this corrosive phenomenon by such means
as support for programmes of good governance. However, criminalisation by
other countries does not seem a practical or effective complementary action.'
26. While
the Commentaries to the OECD Convention do not suggest there must be a defence
in relation to facilitation benefits, they provide a rationale for including
one by stating that such payments are more appropriately dealt with under the
domestic law of countries. This is a reminder that the offence here is international
in nature and primarily aimed at larger scale bribes which may distort trade.
The Government also recognises that business may want more certainty about this
issue by drafting it into the legislation. It has therefore been decided to
include alternative defences for the purposes of consultation.
27. However the OECD Convention and its Commentaries provide no guidance as
to what is meant by a `small' facilitation benefit. In view of the serious nature
of the offence it is undesirable to have such a vague defence, however vagueness
may only be avoided by specifying a figure as proposed in proposed subclause
(7A). (Subclause (7B) being simply a mechanism to avoid uncertainties resulting
from exchange rate fluctuations.) At this stage the Government is reluctant
to specify a figure without first consulting the community, including business,
about what would be appropriate.
28. It is quite possible that no one will be able to suggest a universally appropriate
figure. In that case a formula which relies heavily on the judgment of the jury
such as proposed in subclause (7C) may be the only way it can be done. Alternatively
some may consider that there should be no defence and it is an issue more appropriately
left to prosecutorial discretion.
29. Both of the alternatives provide there is only a defence if subparagraph
14.1(1)(c)(ii) applies but subparagraph 14.1(1)(c)(i) does not apply (paragraphs
14.1(7A)(b) and 14.1(7C)(b)). Subparagraph 14.1(1)(c)(ii) covers the situation
where the intention to influence the official was in order to obtain or retain
an improper advantage in the conduct of the business. This is far less specific
than subparagraph 14.1(1)(c)(i) (the intention to influence the official was
in order to obtain or retain business). Without a specific defence subparagraph
14.1(1)(c)(ii) may catch smaller "facilitation" benefits such as where a manager
in Australia authorises the payment of a small bribe of $100.00 to a foreign
official to expedite the connection of a single phone in an office that already
has 50 phones). Assuming it is illegal to make the payment in the country where
the example occurs, it is much more likely that it could be proven that it was
intended to influence the official to obtain an improper advantage in the conduct
of business than would be the case if it was alleged the person made the payment
to obtain or retain business (subparagraph 14.1(1)(c)(i)). The conduct
of business is a broader term which includes a wider range of activities.
It is therefore proposed that defences in subsections (7A) and (7C) be limited
to charges relying on subparagraph 14.1(1)(c)(ii).
Definitions
30. The subclause defines "Australia" to include the external Territories.
The Acts Interpretation Act 1901 provides that "Australia", when used
in any Commonwealth Act, includes the Territory of Christmas Island and the
Territory of Cocos (Keeling) Islands but does not include any other external
Territory. The Acts Interpretation Act 1901 also provides that "external
Territory" means a Territory for the government of which provision is made by
any Act.
31. "Benefit" is defined to include any advantage and is not limited
to property. This is consistent with Article 1(1) of the Convention and the
recommendation of the Model Criminal Code Officers Committee in relation to
the domestic bribery offence.
32. "Duty" of a foreign public official is defined to mean any authority,
duty, function or power that is conferred on the official or which the official
holds himself or herself out as having. This definition is intended to cover
every situation where an official is required to make a decision in the course
of his or her work.
33. "Foreign country" is widely defined to include colonies or overseas
territories or territories outside Australia whose international relations are
governed by another country and other territories outside Australia which are
partly self-governing but are not recognised by Australia as sovereign states.
34. "Foreign government body" is defined to include national, local or
regional governments in a foreign country or an authority, body or enterprise
of the government of the foreign country or of a part of the foreign country.
The importance of different tiers of government varies markedly from one country
to another.
35. "Foreign public enterprise" is defined after taking into account
the terms of paragraphs 14 and 15 of the Commentaries to the OECD Convention
which state:
`14. A
"public enterprise" is any enterprise, regardless of its legal form, over
which a government, or governments, may, directly or indirectly, exercise
a dominant influence. This is deemed to be the case, inter alia, when the
government or governments hold the majority of the enterprise's subscribed
capital, control the majority of votes attaching to shares issued by the enterprise
or can appoint a majority of the members of the enterprise's administrative
or managerial body or supervisory board.
15. An official of a public enterprise shall be deemed to perform a public
function unless the enterprise operates on a normal commercial basis in the
relevant market, i.e. on a basis which is substantially equivalent to that
of a private enterprise, without preferential subsidies or other privileges.'
36. Again
it is necessary that the legislation be precise. In order to capture the objectives
of paragraph 14, paragraph (a) of the definition provides that in relation to
a company, it includes one where the government of a foreign country holds more
than 50% of issued share capital or more than 50% of the voting power in the
company or may appoint more than 50% of the company's board of directors or
the foreign government is otherwise able to exercise control over the company
including expecting the directors to act in accordance with directions.
37. Paragraph (b) of the definition provides that if the enterprise is a body
or association other than a company it must be one where either:
the members of the executive committee are accustomed or are under an obligation
to act in accordance with the wishes of the government of a foreign country
or part of it; or
the government of a foreign country or part of it is in a position to exercise
control over the body or association.
38. Finally paragraph (c) provides that the company (a) or, body or association
(b) is only a "foreign public enterprise" if it enjoys special legal rights,
status or privileges in the foreign country because of its relationship with
the foreign government. This implements the restriction proposed at paragraph
15 of the Commentaries to the Convention.
39. The term "foreign public official" is widely defined to mean
a member of a legislature of the country or anybody employed by, under contract
to, appointed by or otherwise in the service of a foreign government or an international
organisation.
40. The term "international organisation" is defined because foreign
public officials can include persons who are officials of an international organisation
as well as persons who are officials of a foreign government. The term is defined
to mean an organisation of which 2 or more countries or the governments of 2
or more countries are members or which has been established by an organisation
of which 2 or more countries or governments of countries are members or which
is a sub-group established by such an international organisation. The definition
accords with paragraph 17 of the Commentaries to the OECD Convention and is
similar to the definitions of "international organisation" in section 30B of
the Veterans' Entitlement Act 1986 and in section 4 of the Nuclear
Non-Proliferation (Safeguards) Act 1987.
41. The term "share" is defined to include `stock'. This can be taken
to mean the capital of a company as contributed by investors in the company.
This definition is necessary because the term "issued share capital" occurs
in the subparagraph (a)(i) of the definition of "foreign public enterprise".
Subclauses 14.1(9)-(12) - Application to ancillary offences
Attempt
42. Subclause 14.1(9) governs the application of section 11.1 of the Criminal
Code to the offence created by the Bill. Section 11.1 provides for an offence
of attempting to commit the principal offence (subclause 14.1(1)) and stipulates
that the attempt carries the same penalty as the principal offence. Subclause
14.1(9) provides that, for the purposes of determining whether the offence of
attempting to bribe a foreign public official is established, the person's conduct
of attempting to commit the offence shall include conduct both within and outside
Australia. It is not a requirement that any of the conduct in the "attempt"
offence occur in Australia, however the principal offence must include some
conduct which is intended to occur in Australia.
43. Thus where person A, who is outside Australia at all relevant times, attempts
to mail or otherwise forward money to the bank account in Australia of foreign
public official B but whose attempts to do so are unsuccessful A may have committed
an offence of attempting to bribe B. This would be the case under subclause
14.1(9) because, even though none of A's conduct in attempting to commit the
offence occurred in Australia, some of A's conduct would have occurred in Australia
had the attempt been successful.
Complicity
44. Subclause 14.1(10) governs the application of section 11.2 of the Criminal
Code to the offence created by the Bill. Section 11.2 provides that a person
who aids, abets, counsels or procures the commission of an offence by another
person (complicity) is taken to have committed that offence.
45. Subclause 14.1(10) sets out, for the purposes of determining whether an
offence of aiding or abetting the commission of an offence of bribery of a foreign
public official is established, where the person's conduct of aiding or abetting
the commission of the offence must occur.
46. Paragraph 14.1(10)(a) provides that the conduct of the ancillary offence
of aiding and abetting etc. (complicity) the commission of the principal offence
may occur both within and outside Australia.
47. Paragraph 14.1(10)(b) applies where the conduct is wholly or partly within
Australia and subparagraph 14.1(10)(b)(i) provides that the rule in subclause
(3) is to be disregarded. The rule in subclause (3) is that the conduct prescribed
by the offence must occur partly in Australia.
48. Subparagraph 14.1(10)(b)(ii) provides that the conduct in the offence of
aiding and abetting the principal offence may occur within and outside Australia
and may include conduct that is wholly outside Australia.
49. The effect of subparagraphs 14.1(10)(b)(i) and (ii) is that none of the
conduct of aiding or abetting the commission of the offence of bribing a foreign
public official need occur in Australia and that the offence may have been committed
so long as part of the conduct of the principal offence occurred in Australia.
50. For example if A, who is outside Australia, aids and abets B, who is also
outside Australia, to bribe foreign public official C by aiding B to forward
a payment to C's bank account in Australia then an offence under section 11.2
of the Criminal Code of aiding and abetting the bribing of a foreign
public official may have been committed by A. The only geographical nexus of
conduct in Australia is that part of the conduct of the principal offence must
occur in Australia whereas none of the conduct in the aiding or abetting need
occur in Australia.
51. As with attempt the proposed application of the aiding and abetting provision
is consistent with Article 1(2) of the Convention.
Incitement
52. Subclause 14.1(11) governs the application of section 11.4 of the Criminal
Code to the offence created by the Bill. Section 11.4 provides that a person
who urges the commission of an offence by another person is guilty of the offence
of incitement. Incitement is different from aiding and abetting because for
someone to be guilty it is not necessary that the offence must be committed
by the other person (see paragraph 11.2(2)(b) and section 11.4 of the Criminal
Code).
53. Subclause 14.1(11) sets out, for the purposes of determining whether an
offence of urging the commission of an offence of bribery of a foreign public
official is established, where the person's conduct of urging the commission
of the offence must occur.
54. Paragraphs 14.1(11)(a) and (b) of the Bill are identical to paragraphs 14.1(10)(a)
and (b). Paragraph 14.1(11)(a) provides that the conduct of the ancillary offence
of incitement may occur both within and outside Australia.
55. Paragraph 14.1(11)(b) applies where the conduct is wholly or partly within
Australia and subparagraph 14.1(11)(b)(i) provides that the rule in subclause
(3) is to be disregarded. The rule in subclause (3) is that the conduct prescribed
by the offence must occur partly in Australia.
56. Subparagraph 14.1(11)(b)(ii) provides that the conduct in the offence of
inciting the principal offence may occur within or outside Australia and may
include conduct that is wholly outside Australia.
57. The effect of subparagraphs 14.1(11)(b)(i) and (ii) is that none of the
conduct in the "inciting" offence need occur in Australia, however the principal
offence must include some conduct which is intended to occur in Australia.
58. For example if A, who is outside Australia, urges B, who is also outside
Australia, to bribe foreign public official C by urging B to forward a payment
to C's bank account in Australia then an offence under section 11.4 of the Criminal
Code of inciting the bribing of a foreign public official will have been
committed by A.
59. As with attempt and aiding and abetting the proposed application of the
incitement provision is consistent with Article 1(2) of the Convention.
Conspiracy
60. Subclause 14.1(12) governs the application of section 11.5 of the Criminal
Code to the offence created by the Bill. Section 11.5 provides that a person
who conspires (agrees) with another person to commit an offence is guilty of
the offence of conspiracy to commit the principal offence and is punishable
as if the offence to which the conspiracy relates had been committed.
61. Subclause 14.1(12) sets out, for the purposes of determining whether an
offence of conspiracy to commit the offence of bribery of a foreign public official
is established, where the person's conduct in the conspiracy offence must occur.
62. Paragraphs 14.1(12)(a) and (b) of the Bill are identical to paragraphs 14.1(10)(a)
and (b) and paragraphs 14.1(11)(a) and (b) of the Bill. Paragraph 14.1(12)(a)
provides that the conduct of the ancillary offence of conspiracy may occur both
within and outside Australia.
63. Subclause 14.1(12) applies where the conduct is wholly or partly within
Australia and subparagraph 14.1(12)(b)(i) provides that the rule in subclause
(3) is to be disregarded. The rule in subclause (3) is that the conduct prescribed
by the offence must occur partly in Australia.
64. Subparagraph 14.1(12)(b)(ii) provides that the conduct in the offence of
conspiracy to commit the principal offence may occur within and outside Australia
and may include conduct that is wholly outside Australia.
65. The effect of subparagraphs 14.1(12)(b)(i) and (ii) is that none of the
conduct in the "conspiring" offence need occur in Australia, however the principal
offence must include some conduct which is intended to occur in Australia.
66. For example if A, who is outside Australia, agrees with B, who is also outside
Australia, to bribe foreign public official C such that B starts to arrange
to forward a payment to C's bank account in Australia A has committed an overt
act pursuant to the agreement. If for some reason B does not complete those
arrangements and nothing is done to forward the payment, the offence of conspiracy
to bribe a foreign public official will still have been committed by A under
section 11.5 of the Criminal Code. The only geographical nexus of conduct
in Australia is that part of the conduct of the principal offence by B to bribe
C was intended to occur in Australia whereas none of the conduct in the offence
of conspiracy between A and B to commit the principal offence need occur in
Australia.
67. The usual Criminal Code rules in relation to the physical and fault
elements of offences will continue to apply to these ancillary offences. For
example intent to commit the conduct in the ancillary offence must be established.