Lawyer Monthly Magazine - April 2019 Edition

demonstrated that the public official was not entitled to the benefit offered and that the individual or company offering the bribe was not entitled to the benefit received in return. This is rendered even more difficult by a requirement for courts to disregard the amount of a bribe. Although initially intended to ensure that even minor financial breaches are caught in the legislation, courts are unable to take into account whether payments claimed to be legitimate are in fact disproportionate. Another key challenge is that in order to prove the elements of the offence outlined above, Australian law enforcement is requiredataminimumtoobtain specific information about the duties and obligations of the public official involved in the crime. This raises difficulties with cross-jurisdictional assistance, language, and general international cooperation. Finally, the anti-bribery provisions are intended to apply, regardless of whether the offence is committed with a specific business or business advantage in mind. However, this is not clearly spelled out in the legislation. 1999. According to the terms of the convention, signatories are required to have in place laws formally preventing the bribery of foreign public officials. Australia has fulfilled its commitments under the convention by introducing section 70.2 of the Criminal Code Act 1995, which renders foreign bribery a criminal offence. What challenges do Australian law enforcement face in combating foreign bribery? The Attorney-General’s De- partment has referred to four specific challenges which face lawmakers in prosecuting pub- lic bribery offences. Firstly, the current Criminal Code definitions require the prosecution to establish intent by the alleged wrongdoer, both in intending to offer the benefit and in intending to obtain an advantage. This can be particularly difficult to establish when there is no paper trail, or when the person offering the benefit is not the ultimate beneficiary of the benefit. Secondly, to successfully prosecute for the bribery of foreign officials, it must be What is foreign bribery? Foreign bribery includes providing or offering a benefit to a foreign public official, or causing a benefit to be provided to a foreign public official, where the benefit is not legitimately due. The benefit must be intended to influence a foreign public official in the exercise of their official duties for the purpose of obtaining or retaining business or a business advantage which is not legitimately due. What are the penalties for bribing a foreign public official? The maximum penalty for an individual is 10 years’ imprisonment and/or a fine of $1.8 million. The maximum penalty for corporations depends on whether the monetary value of the bribery benefit can be calculated. If the monetary value can be calculated, the penalty is $18 million or three times the value of the benefit obtained, whichever is greater. If the monetary value can’t be ascertained, the maximum penalty is $18 million or 10% of the corporation’s annual turnover, whichever is greater. Furthermore, any financial proceeds earned as a Lawyer Monthly have gotten back in touch with Dennis Miralis, an expert in defending bribery, corruption and money laundering charges. This month, we discuss foreign bribery: what are the challenges facing law enforcement? Dennis speaks about this and the potential changes to legislation. consequence of the bribery are eligible for forfeiture to the Australian Government under the Proceeds of Crime Act 2002 (Cth). What are the key implications of foreign bribery? The potential consequences of foreign bribery can be multidimensional given the international element of the crime. Bribery of foreign public officials can raise serious moral and political concerns, undermine good governance and economic development, and distort international competitive conditions. Froman Australian perspective, an offence of this type has the capacity to embarrass Australia internationally and affect our trading relationships, reputation and international governance. How does Australia deal with foreign bribery? Australia has been a signatory to the key international instrument relating to the prevention of foreign bribery, the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions since INTERNATIONAL CRIMINAL LAW What Is Foreign Bribery? APR 2019 46 Expert Insight www. lawyer-monthly .com