Attorney-General Christian Porter has requested American authorities to obtain judicial orders to prevent the wealthy Gupta family from offloading $US3.67 million New York apartment, after a request from the Australian Federal Police (AFP). US court documents reveal that the AFP have been investigating allegations that Australian-based mining company Getax, bribed multiple senior politicians in Nauru, including members of the current cabinet, to monopolise the country’s phosphate supply. These documents name Getax director, Amit Gupta, as the “target of a criminal investigation who is alleged to have conspired with others to bribe foreign public officials and to have engaged in money laundering and other offences”.

The investigation has been running since 2013. The alleged bribery involved payments and inducements made via Asian bank accounts as part of suspected efforts by Getax to obtain political backing for its phosphate mining operations. In 2018, Singaporean anti-corruption authorities fined a subsidiary of Getax for “corruptly giving $US19,918 to Ryke Solomon, a Member of Parliament of the Republic of Nauru, as an inducement to advance the business interests of Getax”.

Domestic bribery

Bribery is a serious criminal offence and carries heavy penalties. In Australia, anti-corruption and anti-bribery laws are divided between commonwealth laws and state and territory laws. The Criminal Code Act 1995 (Cth) (“Criminal Code”) is Commonwealth legislation that contains offences which capture corrupt actions that both inside or outside of Australia.

Section 141 of the Criminal Code provides it is an offence to bribe a Commonwealth public official. A person is guilty of bribery if they dishonestly:

1. Provide a benefit to another person, or
2. Cause a benefit to be provided to another person, or

• Offers to provide, or promises to provide, a benefit to another person, or

1. Causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person.

In accordance with the law, a benefit is defined as any advantage which is not limited to property.

Additionally, the following elements must be proved in court:

• The person had the intention of influencing a public official, in the exercise of the official’s duties as a public official, and
• The public official is a Commonwealth public official, and
• The duties are duties as a Commonwealth public official.

Moreover, it is an offence if a Commonwealth public official receives or obtains (or agrees to receive or obtain) a benefit for himself, herself or another person, or asks for a benefit for himself, herself, or another person.

Foreign bribery

Recent developments and investigations (such as the Getax investigation) raises concerns about the Australian Federal Police’s anti-corporate corruption regime which, despite legal reforms, has struggled to prosecute Australian companies for allegedly bribing overseas political figures.

Section 70.2 of the Criminal Code outlines the offence of bribing foreign public officials. To be found guilty of this offence, the prosecution needs to prove the following elements:

(1) The accused:

1. Provides a benefit to another person, or
2. Causes a benefit to be provided to another person, or

• Offers to provide, or promises to provide, a benefit to another person, or

1. Causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person.

(2) The benefit is not legitimately due to the other person. When considering if a benefit is “not legitimately due”, the court is asked to disregard the value of the benefit, any official tolerance of the benefit, or if the benefit is perceived to be customary or required in the situation.

(3) The accused acted with the intention of influencing a foreign public official in the exercise of the official’s duties as a foreign public official in order to:

1. obtain or retain business; or
2. obtain or retain a business advantage that is not legitimately due to the recipient, or intended recipient, of the business advantage (who may be the first‑mentioned person).

Individuals who commit bribery domestically or overseas can be fined and face up to 10 years imprisonment. If a corporation is found to be guilty of this offence, they will be fined heavily.

Defences

There are some possible defences to the offence of bribing a foreign public official. These include:

• Defence of lawful conduct in the foreign public official’s country (s 70.3). Generally, the conduct should be permitted or required by written law.
• Facilitation payment(s) made to expedite or secure the performance of a routine government action of a minor nature (s 70.4). A “routine government action” refers to actions that are ordinarily and commonly performed by the official.

If you have been arrested or the police are looking to interview you regarding an investigation, Pannu Lawyers is able to advise you of your rights at every step of the criminal investigation & trial process. Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales such as Blacktown Local Court, Mt Druitt Local Court, Parramatta Local Court & District Court, Burwood Local Court, Downing Centre Local Court & District Court, and Penrith Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.

This above information is intended as general information and is not intended to be relied on as legal advice. The part of this article is taken from an article published by the Sydney Morning Herald.