What is Bribery?
What is bribery?
Bribery is the act of offering an incentive to someone else to induce them to act in a way that breaks the law or is dishonest.
Bribery is a common law offence that involves receiving, or offering, unwarranted rewards to someone in public office. This reward is given to influence the behaviour of another dishonestly. It is a white-collar crime closely related to corruption.
However, the gift or reward does not always have to be accepted for the crime to have taken place. Just the offering of a corrupt reward is enough for the offerer to be punished for bribery. Furthermore, the bribe could be for a favour to take place in the future. This favour does not have to happen either.
How is someone guilty of bribery?
However, in order to find a person guilty of bribery, the Crown must prove that money/benefit was offered/paid to an individual.
If there is reasonable doubt that money was given or offered, then there is no case. Additionally, the purpose of giving that benefit was to influence another person to act contrary to their duties. The important part is the intention behind why the accused made the offer.
However, the gift does not always have to be a financial benefit. Other examples of benefits include:
- Hospitality,
- A favour, or
- “undue reward.”
Yet, not every benefit or reward is a bribe. Specifically, the person receiving the bribe must then in turn do something that breaches the law or acts dishonestly.
What is a benefit?
When discussing bribery, you will hear the word benefit a lot. Under the law, a benefit in this context means an advantage. It could be financial, property, a business advantage, or other type of reward.
What is a business advantage?
‘Business advantage’ is another common term in this theme. This is an advantage in the conduct of business.
Examples of bribery
Some examples of bribery include:
- Employing a family member of someone who can award contracts,
- Offering money to a judge to throw out a case,
Gifting something expensive to a doctor so they prescribe a certain drug, - Bribing a public official so they pass a certain bill that could benefit someone’s business.
What is the punishment for bribery in NSW?
The Crimes Act 1900 (NSW) states that bribery is an offence. In New South Wales, punishment for bribery has a maximum penalty of up to seven years imprisonment, or a hefty fine.
If the briber worked for a company, that business could also be in trouble. The company could be fined up to $22 million, or three times the value of the bribe, or 10% of its turnover over the past year.
Bribing a Police Officer in NSW
Under the Police Act 1990, it is a crime to bribe a NSW Police officer. In NSW, it is also a crime to bribe anyone who holds a position in a public office. Furthermore, it is also an offence for an officer to receive or ask for any a bribe. The bribe must be given to influence the performance of the officer’s duty.
The maximum penalty for bribing a police officer in NSW is 7 years imprisonment and/or a $22,000 fine. Similarly, if an officer asks for or receives a bribe the penalty is the same.
Bribing a police officer can include:
- Giving or offering to give an officer a benefit,
- Trying to influence their actions to benefit yourself,
- Attempting to make an agreement with an officer so they neglect their duty.
Australian case of bribing a police officer in NSW
A famous case of bribing a police officer in NSW involved a former footballer, John Elias. Elias appeared before Balmain Local court after he allegedly bribed a police officer. The footballer was caught with drugs and attempted to bribe the officer to turn a blind eye.
Elias offered the policeman $500. However, the police charged him with a bribery offence on top of the possession of drugs charge.
Bribery overseas
Under Australian Commonwealth law, someone is guilty of bribery for bribing a foreign official if:
- Someone gives a benefit to another person, or promises to give a benefit in the future, and
- That person is not rightly owed that benefit and,
- The giving of that benefit was given to influence a foreign public official in the exercise of their duties. This is normally to obtain a business or monetary advantage, which is not legitimately due.
In Australian law, bribery of a foreign official is a serious crime. It can be punishable either by fines or imprisonment.
Industries prone to bribery
Some industries in Australia are more vulnerable to bribes than others. For example, mining & exploration, oil, and gas. This is because these industries are dealing with different governments across the globe. As a result, they sometimes are offered bribes.
The court does not have to prove that the business in question obtained any business advantage from the bribe. Furthermore, it is not a defence to say that the other person demanded a bribe.
However, there are other defences for bribery:
- If there is a written law in the country where the bribery took place that requires a benefit.
- The payment was a ‘facilitation payment’.
What is a facilitation payment?
One defence for bribing a foreign official is to prove it was a ‘facilitation payment’. A facilitation payment is when someone pays a foreign official to speed up a minor routine government action. This is usually a small payment. Additionally, those involved must make an official record of the payment as soon as possible.
It is important to note the difference between what acts constitute a facilitation payment.
Examples of facilitation payments
Facilitation payments cover:
- Giving police protection, or
- Obtaining a license for someone to work in a foreign country.
On the other hand, the following are acts that are not classed as facilitation payments. Anything to do with rewarding someone so they encourage new business or allowing an existing business to continue is not allowed.
Our Lawyers can help you with your corruption charges
Are you facing charges for corruption? Or have you been a victim of corruption?
Our experienced lawyers have years of experience in this area of law. Get in touch with us today. Call O’Brien Criminal and Civil Solicitors on (02) 9261 4281 to set up a free appointment with an experienced Sydney fraud lawyer.
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