What are Australia’s foreign bribery obligations?
International conventions on bribery
The Organisation for Economic Co-operation and Development (OECD) established a Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. It is the first and only international anti-corruption instrument focused on the ‘supply side’ of the bribery transaction.
The Convention establishes legally binding standards to criminalise bribery of foreign public officials in international business transactions and provides related measures that aim to make this effective.
Australia is a signatory to the Convention and regularly submits monitoring reports to the OECD to ensure compliance with the Convention. The OECD also periodically reviews Australia’s performance through a working group comprised of OECD delegates from various member states. These reports and reviews ensure that Australia complies with its international obligations.
Who investigates foreign bribery allegations in Australia?
The Australian Federal Police (AFP) is responsible for investigating allegations of foreign bribery relating to Australian citizens, residents and corporate entities.
The AFP is heavily reliant on the public to report foreign bribery when it is discovered. Foreign bribery can be detected and reported by employees, auditors, competitors, government officials or anyone who is engaged in any form of business with foreign countries.
What are some Indicators of foreign bribery?
The following is a list of some indicators that foreign bribery may have occurred:
- Payments made through third party countries without a legitimate explanation
- Contracts being won without tender
- Unusually large commissions being paid to agents
- Unexplained or unaccounted for cash payments
- Expensive tenders winning contacts over comparable, cheaper tenders
- Lavish gifts or hospitality
- Internal company protocols and guidelines not being adhered to
- Contracts where agents or employees have inside information on the tender process
Foreign bribery in China - a case study
In 2012, pharmaceutical giant Pfizer Inc agreed to pay US$60.2 million to settle a government probe of the company’s use of illegal payments to win business overseas.
The improper payments were made to officials in Russia, Bulgaria, Croatia, Kazakhstan, Serbia, Czech Republic, China and Italy.
In China, for example, Pfizer employees hosted "club-like meetings" for government doctors who wrote a lot of prescriptions. The company also created programs where government doctors could accumulate points based on the number of prescriptions they wrote for Pfizer products. The points could be redeemed for gifts ranging from medical books to cell phones, tea sets, and reading glasses.
How seriously does Australian view foreign bribery?
How is foreign bribery defined?
What are some of the international sources of Australia’s foreign bribery laws?
How Nyman Gibson Miralis can help you
Nyman Gibson Miralis has expertise in foreign bribery matters that involve multiple jurisdictional investigations. We have advised individuals who are the subject of bribery investigations in the USA, China, South Korea, Taiwan, and Hong Kong, where there has been a connection to Australia.
Investigations involving bribery are lengthy, complex and raise issues concerning which jurisdiction the offence was committed in, which laws will apply to the investigation and what rights those who are being investigated have under different legal regimes.
In particular, the sharing of private and confidential information, whether through formal mutual assistance or police to police co -operation is conducted without due regard to the legal rights of those under investigation.
The governance models concerning how Australia’s law enforcement bodies share such information and the use of information they receive from foreign jurisdictions is underdeveloped and raises significant legal risk for those under investigation.
Nyman Gibson Miralis has significant advisory, investigative and litigation experience, and has worked closely with other law firms and expert consultants to deliver the highest quality legal assistance.
If you need advice from a criminal defence lawyer, contact one of our criminal law specialists immediately at either our Sydney or our Parramatta offices. We have particular experience in bribery criminal proceedings. Call 1800 NOT GUILTY and arrange a free conference with a solicitor today.
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