Divisions 70 and 141 of the Criminal Code Act 1995

Assessing the ‘facilitation payments’ defence to the Foreign Bribery offence and other measures

Public Consultation Paper

15 November 2011

Disclaimer: This document is designed to inform discussion of issues. It does not necessarily reflect the views of the Commonwealth, or indicate a commitment to a particular course of action.

Contents

Introduction 1
The Foreign Bribery offence 1
The facilitation payment defence 2 International approaches 3 Arguments for prohibiting facilitation payments 3 Arguments against prohibiting facilitation payments 4
When a benefit is legitimately due 5
The official intended to be influenced by a bribe 6
A benefit provided or requested ‘dishonestly’ 6
Submissions 7

Introduction

1. The Australian Government is committed to stamping out corruption and has a comprehensive anti-corruption system for the public and private sectors.

2. Australia has a strong record of global, regional and domestic action to prevent and expose corrupt activity, and is ranked as the 8th most corruption-free nation in the world in the most recent Transparency International Corruption Perceptions Index.

3. In September 2011, the Australian Government announced the commitment of $700,000 to develop and implement Australia’s first National Anti-Corruption Plan. A key objective of the Plan is to strengthen Australia’s existing governance arrangements by developing a whole-of-government policy on anti-corruption. The Plan will bring the relevant agencies together under a cohesive framework and strengthen the Government’s capacity to identify and address corruption risks.

4. Even though Australia has an admirable anti-corruption record, it is important to consider possible additional measures. Such