Introduction

Sometimes we don’t get our way, and sometimes, trying to get our way after being told “no” can make matters a lot worse. This is precisely the case with bribery, which is a serious offence under New South Wales law, involving the offering or receiving of undue rewards to influence the actions of individuals in public office. This offence is addressed under both common law and statutory provisions, such as the Crimes Act 1900 (NSW), and carries significant legal consequences for individuals and businesses alike. Understanding these laws is crucial for anyone seeking to navigate the complexities of NSW’s legal framework and protect themselves from potential legal repercussions.

This guide provides a comprehensive overview of bribery laws in NSW, covering key aspects such as legal definitions, penalties, and recent reforms. It is designed to offer practical guidance for individuals, businesses, and legal professionals, helping them understand their rights and obligations under the law. Whether you are seeking to prevent bribery in your organisation or need to address allegations of bribery, this guide provides the essential information you need to make informed decisions and ensure compliance with NSW bribery laws.

Understanding the Bribery Offence in NSW

Defining Bribery Offence in NSW

Bribery in NSW is legally defined as the act of offering, providing, or promising an undue benefit to influence the actions of a public official. This offence can occur even if the benefit is merely offered and not accepted.

For a bribery charge to be established, the Crown must prove that:

• A benefit was provided or offered
• The intent behind it was to influence the official’s actions

A “benefit” in this context is broadly defined and can include financial gains, hospitality, favours, or any other form of undue reward. Importantly, not every gift or reward constitutes a bribe; it must be given with the intent to dishonestly influence the official’s duties.

Key Elements & Intent of Bribery Offence

For a bribery offence to be established, the Crown must prove two key elements:

1. Offer or Provision of a Benefit: This involves providing, offering, or promising something of value to a public official. The benefit does not have to be financial; it could be a service, favour, or other advantage.
2. Intent to Influence: The offer or provision of the benefit must be made with the intent to influence the public official’s actions in a way that breaches their duty or honesty. The intent is a critical factor, and the Crown must demonstrate that the accused acted with the purpose of inducing the official to act dishonestly.

Examples of benefits that may constitute bribery include:

• Financial Benefits: Cash payments, loans, or investments
• Non-Financial Benefits: Gifts, travel expenses, or employment opportunities for family members
• Favours: Preferential treatment in business dealings or influence over decision-making processes

The intent behind the offer is crucial. If the accused intended to influence the official’s actions to act contrary to their duty, it constitutes bribery, regardless of whether the action was taken or harm resulted.

Legal Framework Surrounding Bribery and Corruption Offences in NSW

Statutory Provisions Under Crimes Act 1900 (NSW) & Police Act 1990 (NSW)

The legal framework for addressing bribery and corruption in NSW is primarily established under the Crimes Act 1900 (NSW) and the Police Act 1990 (NSW). These statutes criminalise various forms of bribery and corruption, ensuring accountability across both public and private sectors.

Under the Crimes Act 1900 (NSW), Section 249B specifically addresses bribery involving agents by:

• Making it an offence for an agent to receive or solicit a benefit that could influence their actions in relation to their principal’s affairs
• Criminalising the offering or giving of such benefits to an agent

The term “agent” is broadly defined to include employees, public officials, police officers, and councillors under the Local Government Act 1993 (NSW).

The Police Act 1990 (NSW) further strengthens anti-corruption measures by prohibiting both the receipt and offering of bribes to police officers through Section 200. This includes any form of benefit intended to influence the performance of their duties.

Penalties for bribery offences under these Acts can be severe, with imprisonment terms of up to seven years. The comprehensive application of these laws ensures that both public officials and private agents are held to high standards of integrity.

Key elements of these statutory provisions include:

• Criminalisation of offering, giving, or receiving bribes by agents
• Prohibition of bribery within the police force
• Significant penalties, including imprisonment and fines
• Broad definition of “agent” to cover various roles and positions

Common Law Definition & Overseas Legislation

At common law, bribery is defined as the offering or receipt of an undue reward to influence the behaviour of a person in public office. This definition applies even if:

• The offer is rejected
• The benefit is promised for future influence

The common law offence applies to both public officials and private agents, ensuring a comprehensive approach to combating corruption.

In addition to NSW legislation, Commonwealth laws under the Criminal Code Act 1995 (Cth) criminalise bribery of foreign public officials. Section 70.2 of the Code makes it an offence to provide or offer a benefit to a foreign public official to influence their duties and obtain a business advantage. This provision ensures that Australian businesses and individuals are held accountable for their actions overseas.

A key defence to foreign bribery charges is the facilitation payment defence. This applies to minor payments made to expedite routine government actions, provided they are recorded promptly. However, this defence does not apply to payments made to:

• Influence decisions on awarding new business
• Continue existing business relationships

Key aspects of common law and overseas legislation include:

• Broad application of common law bribery offences
• Criminalisation of foreign bribery under Commonwealth law
• Facilitation payment defence for minor, routine government actions
• Significant penalties for individuals and corporations under Commonwealth law

This legal framework demonstrates a robust approach to combating bribery and corruption, both within NSW and internationally, ensuring a high standard of integrity across all sectors.

Offences & Charges Relating to Bribery in NSW

Bribery Offences Involving Public Officials & Agents

Bribery offences in NSW involve the offering, giving, or receiving of benefits to influence the actions of public officials or agents. Under the Crimes Act 1900 (NSW), bribery is criminalised, and the Crown must prove that a benefit was offered with the intent to influence an official’s duties.

Common examples of bribery include:

• Offering money to a police officer to ignore a traffic violation
• Employing a public official’s family member to secure a contract

Key aspects of these offences include:

• Intention to Influence: The offer must be made with the intent to influence the official’s actions, even if the offer is rejected.
• Scope of Benefits: Benefits can be financial or non-financial, such as hospitality, favours, or other advantages.
• Legal Consequences: Offenders face penalties, including imprisonment and fines, with corporations potentially facing substantial financial penalties.

Corruption Offences & Related Charges

Corruption offences encompass a broader range of activities beyond bribery, including embezzlement and fraud. These offences often involve the abuse of power for personal gain and can occur in both public and private sectors.

Examples of corruption offences include:

• Embezzlement: A public official misusing allocated funds for personal gain.
• Fraud: Falsifying documents to obtain unauthorised benefits.
• Abuse of Power: A manager accepting kickbacks from suppliers.

These offences are investigated by agencies like the Independent Commission Against Corruption (ICAC) and can result in severe penalties. The consequences may include imprisonment and significant fines.

Understanding these offences is crucial for individuals and businesses to navigate legal complexities and ensure compliance with anti-corruption laws.

Penalties & Defences for Bribery Offences in NSW

Maximum Penalties for Bribery & Corruption Offences

In New South Wales, the legal consequences for bribery and corruption are determined at a sentencing hearing, where individuals found guilty can face a maximum penalty of 7 years imprisonment under the Crimes Act 1900 (NSW).

For corporations involved in bribery, the penalties are even more substantial, potentially reaching:

• Up to $22 million
• Three times the value of the bribe
• 10% of the company’s annual turnover, depending on the severity of the offence

The severity of these penalties reflects the serious nature of bribery offences in NSW. Furthermore, the legal system distinguishes between different types of offenders:

• Individuals: Face up to 7 years imprisonment and/or significant fines
• Corporations: Receive fines based on the value of the bribe, annual turnover, or a fixed amount
• Public Officials: May incur additional penalties for breaches of public trust

Available Defences for Bribery Cases

While bribery charges are serious, several specific defences may be applicable in certain circumstances. Understanding these defences is crucial for anyone facing such charges.

1. Facilitation Payment Defence:
   A defence may be available if the payment was a facilitation payment – a minor payment made to a foreign public official to expedite routine government actions (e.g., processing permits or licences). To qualify for this defence:
   • The payment must be recorded promptly
   • The action must be of a minor nature
2. Written Law Requirement:
   If the payment was required or permitted under the written law of the country where the bribe occurred, it may be considered a valid defence.
3. Legal Advice:
   Seeking expert legal advice is crucial in bribery cases, as the legal framework is complex, and the consequences of a conviction are severe.

For businesses, having adequate procedures in place to prevent bribery can also serve as a defence, demonstrating proactive compliance with anti-bribery laws.

Legislative Reforms & Anti-Bribery Measures for NSW & Australia

Reforms Strengthening Bribery Laws in NSW

Recently, NSW has implemented significant legislative reforms to strengthen its anti-bribery framework. These reforms aim to enhance the effectiveness of bribery law enforcement and increase penalties for offenders.

Key updates include:

• Increased Penalties: Penalties for bribery offences have been increased to reflect the seriousness of such crimes. Individuals can now face up to 7 years imprisonment, while corporations may be fined up to $22 million or three times the value of the bribe.
• Expanded Investigative Powers: The Independent Commission Against Corruption (ICAC) has been granted broader powers to investigate corruption cases. This includes the ability to conduct public inquiries and compel the production of documents and testimony.
• Broader Definition of Bribery: The definition of bribery has been expanded to include a wider range of activities, ensuring that both public and private sector corruption is addressed effectively.

These reforms demonstrate a commitment to combating bribery and corruption at all levels of society.

Anti-Bribery Measures & Whistleblower Protections

To prevent bribery and corruption, several measures have been implemented in NSW and Australia.

These measures include:

• Whistleblower Protections: The Treasury Laws Amendment (Enhancing Whistleblower Protections) Act 2019 has strengthened protections for whistleblowers who report corrupt conduct. This Act consolidates and broadens protections for corporate and financial sector whistleblowers, ensuring they are safeguarded from retaliation.
• Internal Monitoring and Compliance Strategies: Businesses are encouraged to implement robust internal monitoring and compliance strategies to detect and prevent bribery. This includes having clear codes of conduct, proper financial record-keeping, and internal auditing mechanisms.
• Facilitation Payments Defence: A defence is available for facilitation payments, which are minor payments made to foreign public officials to expedite routine government actions. However, these payments must be recorded promptly and are only permissible for minor, routine actions.

By understanding these reforms and measures, individuals and businesses can better navigate the legal landscape and ensure compliance with anti-bribery laws in NSW and Australia. If you have any questions or need legal advice, contact Daoud Legal, a trusted criminal law firm in Sydney, for specialised guidance.

Conclusion

Understanding and complying with bribery laws in NSW is crucial for individuals and businesses to avoid severe legal consequences. This guide has covered the legal framework, key elements of bribery offences, penalties, defences, and recent reforms aimed at strengthening anti-bribery measures. It is essential to stay informed and proactive in adhering to these laws to maintain integrity and avoid legal repercussions.

If you or your organisation is facing charges for bribery or related fraud offences, or needs guidance on compliance, contact our expert criminal lawyers at Daoud Legal: Sydney Criminal Defence & Traffic Lawyers. Our experts provide specialised legal advice and representation to help you navigate complex bribery cases effectively.

Frequently Asked Questions