No more envelopes under the table

Last year was an active one for law enforcers on the foreign bribery and corruption front.

Australian business finds itself in a new era – an era where law enforcers around the world are pursuing bribery and corruptions cases with renewed vigour and with increased cross-jurisdictional dialogue and cooperation. It is also an time when payments that in the past may not have been bribery will now certainly constitute bribery under UK law, and may also soon be bribery under Australian law.

Any Australian business that operates in countries where demands for small payments to lubricate regulatory and other public processes is common are now faced with a risk to the business, its employees and its directors, and a dilemma in how they deal with business transactions in these countries going forward. The dilemma is underscored by mind-boggling penalties for getting it wrong.

On 1 July last year, after much fanfare (and more than a little gnashing of teeth) the UK Bribery Act came into force. On the same day, the Commonwealth DPP laid charges in relation to Securency International, Note Printing Australia and a number of individuals under Australian bribery legislation – charges which are yet to be determined by the courts. And in November, the Attorney General's Department released a public consultation paper inviting comment on the government's review of Australian anti-bribery legislation, with particular focus on the treatment of facilitation payments under Australian law.

Presently, if a charge is brought in relation to a payment made to a foreign public official that would otherwise be classified as a bribe under Australian law, it will be a complete defence if the payment was a ‘facilitation payment'.

To be a facilitation payment, the value of the payment must be minor, it must have been paid for the dominant purpose of securing or expediting a routine government function which itself is of a minor nature, and as soon as practicable after the payment a record (which satisfies particular legal requirements) must be made – the most difficult of these being that the payor must effectively obtain a receipt from the foreign official.

In March 1999, the Howard government amended the Commonwealth Criminal Code to include the offence of bribing a foreign public official. In relation to the facilitation payments, the government said: "Small payments are something left for local officials to stamp out and it is not appropriate or practical for foreign governments to be concerning themselves with expensive international prosecutions. This approach reflects what is provided for in the Convention and is similar to legislation in the USA and Canada” (Senate Hansard, 10 March 1999).

For the next 12 years not much happened under Australian anti-bribery laws. That was until the charges laid on July 1. Prior to then, Australian law makers and enforcers had been subject to polite but consistent criticism about a lack of action. In around October 2012 the UN Working Group on Bribery in International Transactions is due to release its ‘phase three' report on Australian bribery laws. In broad terms the report will comment on the degree to which Australian laws have been enforced since their introduction. It is likely that Australia will be in for further criticism about a lack of action.

It is against that background that the federal government's assessment of Australia's anti-bribery laws can be better understood. That it will focus on a defence which has never been (and never had to be) invoked is curious. It can't be that the prospect of potential defendants invoking the defence has scared off prosecutors. After all, the recording keeping hurdles imposed in an Australian context mean that the defence will rarely be satisfied. Further, a similar defence is available in US, and that country is by far the most active, and successful, in enforcing its bribery legislation. The defence is rarely raised by defendants in US prosecutions for foreign bribery. More likely, the impetus for the federal government's assessment is the renewed emphasis on bribery of foreign officials brought about by the commencement of the UK Bribery Act, and anticipated criticism in the form of the UN's phase three report.

Just how this fits with the federal government's encouragement of Australian business to move into new offshore markets, particularly Africa, is unclear. The World Bank estimates that half of the 10 fast-growing economies over the next five years will be in Africa. Presently, Australian business reportedly has 665 projects in 42 African countries, with 220 of these being commenced in the passed 20 months. Meanwhile, in October 2011 Foreign Minister Kevin Rudd launched a $30 million initiative to foster mining development in Africa.

This can be contrasted with a public survey of conducted by Transparency International in 2010 – 2011 of more than 6,000 people across the Democratic Republic of Congo, Malawi, Mozambique, South Africa, Zambia and Zimbabwe, which showed that 62 per cent of those surveyed considered that corruption had increased in their countries, and 56 per cent actually admitted to having paid a bribe to one of 9 service providers (ie government services) in the previous 12 months. Alarmingly, the police were considered the most corrupt institution in each of the countries.

Regardless, Australian business finds itself in this new era. In the context of the public consultation paper, Australian business should now consider that, to the extent the facilitation payments defence ever had any life under Australian laws, it will soon be dead. Any Australian business operating in countries where demands for such payments are common, including fast emerging African economies, should act to prohibit the making of such payments by their employees and others. Business impacts of refusing such demands will also need to be anticipated and planned for. To do otherwise risks the employee, the business and its directors committing criminal offences punishable in Australia, irrespective of where the facilitation payment is made.

Paul Wenk is a partner in Freehills Litigation group.