The provisions of the Criminal Code (Cth) that target bribery of foreign public officials have rarely been used. There are important aspects of the provisions that remain to be tested before the Courts.
I am experienced in dealing with the Criminal Code, and in particular with its approach to jurisdictional concepts such as extraterritoriality. I am also familiar with the challenges of admitting foreign evidence. Those challenges are amplified where the evidence comes from third world non-English speaking countries with non-common law legal systems.
Bribery and corruption are at their very heart economic crimes. Public officials in some countries will actively target Australian companies and seek bribes. Some offenders may be relatively unsophisticated and simply ask for cash to facilitate commerce. Others will be the opposite. They may ask for payment in kind to a third party in a third country. For example an official might ask that a ‘gift’ be vested in the name of a bearer share company that he controls. My experience with Money Laundering and Proceeds of Crime matters has taught me the methods that can be deployed to transfer money ‘under the radar’. There are usually tell-tale signs.
Internal advice and investigations
A company that has even the slightest fear that one of its employees or agents may be bribing a public official (local or foreign) should immediately seek external independent legal advice. It will often be prudent to also engage an external independent forensic audit team at an early stage.
Bribery and corruption matters present a myriad of legal and public relations challenges. For instance, in the case of a listed entity, ensuring compliance with the continuous disclosure obligations without prejudicing the investigation.