University of New South Wales Faculty of Law Research Series
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Doing business abroad often requires the payment of minor sums to secure the provision of routine government services. Such payments are not meant to render Australian businesses liable under the provisions that make bribery of foreign public officials a crime in Australia. However under the present legislation the availability of this defence is often uncertain. This article argues it is time to revisit the language of the defence and for the government to offer some simple services that would assist Australian businesses operating abroad.
Published in (February 2008) ALJ
Corruption is topical. The payment by the Australian Wheat Board of about $300 million to Iraq to secure the sale of Australian wheat was investigated by the Cole Inquiry in 2006, the same year the investigation commenced into the allegations that Woodside Petroleum had paid bribes to a Mauritanian government official regarding oil exploration.[1]
The Australian Wheat Board had the chutzpah, not only to make such massive payments, but to claim, successfully, that they were tax deductible as ‘facilitation payments’.[2] The tax deductibility of the payments was upheld by the ATO, not because they were acceptable facilitation payments, but because the fact the payments were not illegal under Iraqi law meant they were not bribes under Australian law.[3]
Nonetheless, the very idea that payments of this magnitude could qualify as legitimate facilitation payments was canvassed seriously in the media coverage of the Cole Inquiry and appears to have been asserted by AWB, and this shows a general level of confusion in Australia surrounding these issues.
Indeed, research early in 2006 revealed that only 51 of Australia’s top 100 companies had explicit policies prohibiting their employees from giving and receiving bribes, compared to 92% of such companies in the U.K. and 80% in the U.S. [4] And the report in early 2006 by the OECD into Australia’s application of its laws regarding the bribery of foreign public officials, while politely phrased, identified a deep-seated complacency in Australian law enforcement about these issues.[5]
Part of the problem, in our submission, is that the definition of facilitation payments in the Criminal Code is not easy to apply in practice and the Australian government does not supply interpretative services to Australian business regarding its applicability. This article argues it is time to remedy these deficiencies.
On any measure the scale of bribery, globally, is large. The World Bank has estimated that transactions involving US$ 1 trillion per year are tainted by corruption.[6]
When considering corruption most people focus on the costs of the bribes: but they are only the tip of the iceberg. What really matters are the transaction costs[7] and the distorting effect on the local economy.
An example of transaction costs is the situation in which an Australian production line breaks down because a new part is needed from Germany. A call is made. The part is air freighted, and the line resumes operation in 48 hours. When the same thing happens in many developing countries, the part gets to customs within 48 hours, and then the factory owner has to commence a long series of phone calls to identify who is holding the part in customs, and how much money will persuade the officer to process the import in under two or three months. The real cost is not the bribe, but the closure of the production line for weeks as the relevant customs official is located and these delicate discussions, delicate because, of course, bribery is a crime in virtually every legal system, are undertaken.
Bribes distort an economy when they are paid to secure business that should be awarded to superior proposals.[8] In these instances, more expensive or lower quality work is contracted for, because of corruption. Corruption reduces economic growth and is more prevalent in poorer countries which can least afford the reductions in growth and prosperity.
Australian companies have been applauded for their restraint in not paying bribes when doing business abroad. According to the recent Bribe Payers Index of Transparency International, they are the third least likely companies to pay bribes while conducting overseas business, marginally behind companies from Switzerland and Sweden.[9] In the previous Bribe Payers Index, in 2002, Australian companies were rated as the least likely to pay bribes while doing business abroad, marginally ahead, once again, of companies from Switzerland and Sweden.[10] US companies were ranked equal 9th in 2006 and equal 13th in 2002 among those least likely to pay such bribes.
For decades the U.S. was the only country to make it a criminal offence under its own law for its citizens or corporations to pay bribes abroad to foreign public officials, by operation of the Foreign Corrupt Practices Act of 1977.[11] The FCPA was a response to the involvement of some of America’s largest companies in massive bribery scandals, domestically and abroad.[12]
U.S. businesses protested against the restrictive and unclear provisions of the FCPA claiming they reduced the competitiveness of American companies operating internationally. The Omnibus Trade and Competitiveness Act 1988[13] was passed to meet these concerns. The Act made a number of amendments to the FCPA, including clarifying the exemption for small payments by American companies to secure the provision of routine governmental services abroad.
In the 1990s momentum built around the world to eliminate bribery in international transactions. Proponents included the US, the Organisation for Economic Cooperation and Development (the OECD), the United Nations, the International Monetary Fund, the World Trade Organisation, the World Bank, and Transparency International, an NGO dedicated to fighting corruption.
These efforts bore fruit in the OECD Convention on Combating Bribery of Foreign Public Officials which was adopted by the 30 OECD members and five non-member countries in November 1997.[14] The Convention leaves the manner of implementation of the anti-bribery provisions to the implementing country.[15]
Australia gave effect to the Convention by means of an amendment to the federal Criminal Code. Following a National Interest Analysis and a subsequent review by the Joint Standing Committee on Treaties (JSCT), the Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 (Cth) was enacted. This amendment added a Chapter 4 to the Criminal Code entitled “The integrity and security of the international community and foreign governments”[16] which contains the anti-bribery provisions. Section 70.2 of the Commonwealth Criminal Code became effective on 17 June 1999.[17]
As of the time of writing, there had not been any prosecutions for the offence of bribing a foreign public official under Section 70.2 of the Commonwealth Criminal Code[18] and thus no case law on the meaning of the section or of the facilitation defence in section 70.4.
This paper examines the facilitation defence under the Commonwealth Criminal Code, highlights the legal and practical problems with using the defence, and suggests it is time the defence is revised.
Section 70.2 of the Commonwealth Criminal Code states that a person is guilty of an offence if he or she provides a benefit to another person[19], causes a benefit to be provided to another person[20], offers or promises to provide a benefit to another person[21], or causes such an offer or promise to be made to another person,[22] the benefit is not due to the other person,[23] and the provider of the benefit intends to influence the actions of a foreign public official in the exercise of their duties to obtain business[24] or a business advantage.[25] The ‘person’ charged must be an Australian citizen or resident or a body corporate incorporated under a law of the Commonwealth, a State or Territory.[26]
The difficulty with creating this offence is that in many countries routine actions, such as having a telephone or water connected, require the payment of minor sums to government officials. Accordingly an exemption was crafted for so-called ‘facilitation payments’.
Facilitation payments are comparatively small payments intended to expedite or secure the performance of a routine government action, and are known colloquially as “speed money”, “grease payments” or “oiling the wheels”.
Facilitation payments were the subject of more discussion than any other topic in the JSCT’s meetings concerning Australia’s implementation of the OECD Convention and was described as “one of the most difficult issues to be faced.”[27]
It is arguable that facilitation payments should be outlawed altogether.[28] The payments invariably violate the law where they are made[29] and creating a defence under Australian law to actions that are criminal in the jurisdiction in which they are committed is questionable policy.[30] The inclusion of a facilitation defence is seen by some as an “invitation to books and records violations”[31] as employees rarely record grease payments accurately in their company’s records.[32] Such payments, it is argued, set a permissive tone which lead to ever-increasing demands[33] and may corrode the foundations of good governance within the paying corporation.[34]
Indeed, allowing facilitation payments has been described as “logically absurd” and “a departure from the anti-corruption standards which our society has accepted as ... basic” by Terence Cole QC, the commissioner in the Australian Wheat Board inquiry.[35] Furthermore, at the recent APEC meeting in Sydney in 2007 Australia’s Attorney-General released a new APEC Code of Conduct for Business, a set of business integrity principles for adoption by the private sector, and these principles specifically commit those companies that adopt them to eliminate all facilitation payments.[36]
The arguments in favour of such a defence are that these payments do not tend to distort trade or the economy nor damage economic development in host countries.[37] Unlike major bribery, facilitation payments are rarely anti-competitive as they rarely create a competitive advantage in contract procurement.[38] Facilitation payments tend to secure for their maker the services to which they are entitled, and no more.[39] Furthermore, at this time an outright prohibition on facilitation payments is impractical. Such a ban is unrealistic in those countries in which payment of such bribes is endemic. Other countries would not immediately follow Australia’s lead and restrict their companies from making such payments, and so Australian businesses would operate at a disadvantage.[40] A prohibition on such payments would be better dealt with multilaterally at the treaty level rather than through a unilateral Australian law.
Prior to the enactment of Australian law on this issue, two bills were submitted to the Senate. The alternate Bill did not include a defence for facilitation payments.[41] The Australian parliament chose to follow the OECD Convention[42] and permit facilitation payments, partly in response to lobbying by Australian industry which sought a defence similar to the one under U.S. law.[43] This means that facilitation payments are not a bribe under Australian law if made to a foreign public official to secure performance of a routine governmental action even though they would constitute a bribe if paid to a domestic public official in Australia to secure performance of the same action.
Section 70.4 of the Code provides a defence to Section 70.2 by creating an exemption for facilitation payments. Under Section 70.4(1), a person is not guilty of an offence under Section 70.2 if:
Each element of the defence will be considered.
Under Section 70.4(1)(a) of the Code, the facilitation defence is only available if the value of the benefit conferred on the foreign public official is of a minor nature. This requirement is not in the U.S. FCPA. The Commentaries on the OECD Convention specify that payments captured by the facilitation defence should be “small”.[45] Unfortunately, there is little guidance available to help determine what is minor or small.
The Bill tabled in Parliament featured two different versions of the facilitation defence.[46] One provided for a fixed maximum sum, the other specified the payment be of a “small value”. The second approach was adopted because, among other reasons, it would lessen the distortive effect of exchange rates and the differing impacts of payments in different countries.[47] For instance, a payment that could reasonably be considered small in Japan, may be quite substantial in China, especially in Western China. The payment required to facilitate action at one level of government may also differ from that required at another. As was stated, perhaps with a degree of hyperbole, in the JSCT debates concerning the Convention, “What $10 is to one person at one level is what $100,000 is to another person at another level.”[48]
The legislators briefly entertained the notion of setting a maximum amount for the facilitation defence but decided that limiting payments to those of a “minor nature” gave enough guidance to Australian businesses.[49] Commissioner Barry O’Keefe of the Independent Commission Against Corruption suggested that the limit for a facilitation payment be set at $100.[50] Another speaker thought Australia would become a “laughing stock” were it to establish a monetary threshold for acceptable facilitation payments.[51] His concerns included whether the value would be indexed to inflation.[52] It was noted that a payment level that is not responsive to inflation or currency fluctuations could quickly become “irrelevant or inadequate”.[53] Witnesses who pushed for a specific quantum urged legislators to set the threshold at a low amount in order to avoid “blurring the lines” between legal and illegal payments.[54]
The U.S. FCPA does not establish a monetary cap for facilitation payments. The American Congress did not want to set a maximum price and considered that the nature and purpose of the payment should determine its legality.[55] Previously, the FCPA classified a facilitating payment by reference to who would receive the payment, as opposed to its purpose.[56] Consequently, this shifted the focus to whether or not someone met the criteria of a “foreign public official” and placed less emphasis on the effect the payment was supposed to accomplish. American legislators discussed the idea of establishing a threshold of US$5,000 at which point facilitation would become a bribe, but this idea was rejected.[57]
Some have speculated that the context will determine the acceptable level of payment.[58] On this reasoning, a payment to a government official of $10,000 on a $40,000 transaction would likely breach the Criminal Code, as such a payment could not be considered minor in the context of the transaction. However, the same payment in a transaction worth $40,000,000 may well be a permitted facilitation payment.
Such issues will pose difficult questions for courts. The benefit, under Australian law, is to be of a minor nature. Is that to be assessed relative to the size and wealth of the payer, or the recipient? Part of this confusion may have arisen because the section 70.4 is headed “Defence -- facilitation payments” but the language of the section speaks of a ‘benefit’.[59] As the language of the section governs, presumably the focus should be on the value to the recipient of the benefit. However, this doesn’t resolve the issue. Is a payment of $1,000 minor because it is made to a senior, wealthy foreign government official, and would it be not minor, and thus a bribe, if made to a junior, underpaid foreign government official?[60]
A set maximum value would, in such circumstances, relieve the courts of having to determine such difficult issues.
Another challenge arises where a series of small payments have been paid to a foreign government official(s) that collectively amount to a substantial sum.[61] Such a situation has not been specifically anticipated in the legislation. Senator Coonan, rather unhelpfully, referred to this as a “prosecutor’s nightmare”.[62]
American case law suggests the size of the bribe relative to the total value of the transaction will matter little. The grease payments allowed under the FCPA have been less than $1000.[63] Two prosecutions arising on the same facts, United States v. Vitusa Corporation[64] and United States v. Herzberg,[65] provide an example. Vitusa Corporation paid $20,000 to a Dominican government official to secure the payment of $163,000 already owed to it by the Dominican Government. Despite the fact the payment was already owed to Vitusa, the mere fact the payment was $20,000 (12% of the total value of the transaction) was enough to prompt the Department of Justice to act.
Tying the payment to the total value of the transaction does not take into account the differing permissibility of bribes across cultures or the differing values of the bribes to the recipients. Payments of the same value may be considered high in one culture and an everyday occurrence in another. Host country living standards and the recipient’s salary should be taken into account when determining the legitimacy of a payment.[66] This may require the expertise of someone with local knowledge in order to determine the proper classification of the payment.[67]
It has been suggested in the U.S. that the FCPA should establish a two-tier test for facilitation payments requiring that (1) the payment have been made to secure or expedite a routine government action and (2) the payment be beneath a certain percentage of the host country’s average annual per capita income.[68] The Commonwealth Criminal Code already provides for the first limb of this test.[69] If the second limb of the suggested test were adopted in Australia, it would give companies certainty and remain responsive to economic changes in the host country. This addresses the concerns legislators had with establishing a maximum value for legal facilitation payments and is consistent with the Australian position that the payment’s purpose is central to its legality.
Bearing in mind that per capita income is usually lower than an average wage (because it is total national income averaged across the entire population), we contemplate that the maximum level might be set at something like 25% of the host country’s average per capita income.
Another issue is whether the percentage should be applied to the nominal per capita income or the per capita income adjusted for purchasing power parity (an attempt to make national income levels comparable by adjusting them for the costs of living in each nation). There is a considerable difference, particularly with developing countries. For instance, in 2006 China's nominal national per capita income was US$1,740[70] at a time when its per capita income adjusted for purchasing power parity was over US$6,800.[71] Many tables of national income are adjusted for purchasing power parity, so as to facilitate comparisons, but for these purposes it would probably be best to apply the percentage to the nominal per capita income figures. Perhaps the most reliable and continual source are the figures generated by the World Bank, calculated on their Atlas Method and published in World Development Indicators Online.[72] On these figures, a percentage of 20% of nominal per capita income would give maximum allowable facilitation payments in 2007 of US$348 in China and US$256 in Indonesia, which appears about right, but the same formula gives allowable payment amounts of US$6,444 in Australia, and US$8,748 in the U.S., which appear too high to be legitimate facilitation payments. And, of course, if these amounts appear to us to be too high, do the amounts in China and Indonesia only appear acceptable because we are viewing them from our perspective? This seems quite likely, especially when one considers that the purchasing power in China of US $348 is equivalent to US$1,360 in the U.S..
If this proportion of local income approach is adopted, a simple service could be provided by the Commonwealth Government by posting each year on a website the acceptable facilitation payment levels for each other country. This would remove from business the burden of having to recalculate the amounts they are allowed to pay each time they need to pay a minor facilitation payment. These levels would be determined by the government applying a simple formula to the most recently available per capita income figures for the host country. This would provide absolute clarity as to the maximum permitted facilitation payment to be made in that country by Australian business for the coming year.
Nonetheless, the above range of acceptable payment levels appears, at least
intuitively, problematic. Given that in practice the defence
is aimed at
payments made in poorer countries where the culture might be that such payments
are expected, even though illegal, it
may be preferable to set a fixed figure,
perhaps in the order of US$500, as the maximum permitted for a facilitation
payment in all
countries.
We do not seek to dictate the answer on this
point. However, the need to clarify the acceptable amount of facilitation
payments is
obvious in the confused discussions and debate surrounding the Cole
Inquiry into the Australian Wheat Board scandal.
A “routine government action” is described in Section 70.4(2) of the Code as actions of a foreign public official that are “ordinarily and commonly performed by the official”[73] and meet the criteria listed in subsection (b) of the provision. These criteria include the granting of permits or licenses that qualify a person to do business in a foreign country,[74] the processing of government papers such as visas or work permits,[75] the provision of police protection or mail delivery or collection[76], the scheduling of inspections related to contractual performance or the transit of goods[77], the provision of power, water, and telecommunication services[78], the loading and unloading of cargo[79], the protection of perishable products or commodities from deterioration[80], and acts of a similar nature.
This provision is almost identical to its counterpart in the American FCPA.[81] The American formulation has been criticised for providing insufficient guidance on borderline situations not specified in the statute.[82] Conversely, the position of the U.S. Department of Justice (DOJ) is that the development of even more hypotheticals would force companies to sift through the legislation in search of a fact pattern that corresponds with their desired transaction.[83]
The Criminal Code states the “routine government action” must not involve or encourage a decision regarding awarding new business, continuing existing business, or otherwise involve the terms of new or existing business.[84] Despite this, the OECD Phase 1 Working Group on Bribery noted that such actions have to be viewed with discretion. For instance, processing a work permit may not be “routine” in some instances.[85] It has been argued that expediting government services may allow a business relationship to thrive that otherwise would not.[86] American case law suggests that evidence the recipient of the payment wields some discretionary authority excludes the facilitation exception.[87] Yet there is some level of discretion inherent in almost any transaction that involves expediting a routine government action.[88] The OECD Phase 2 Working Group remarked that a document made available on the Department of the Attorney-General’s website impliedly referred to situations where the facilitation defence could be used when the “routine government action” could consist of a decision whether or not to award business.[89] This publication has since been amended.[90]
Because Australian courts have not had the opportunity to test a facilitation defence and set appropriate guidelines, those participating in business overseas must deal with a degree of uncertainty. Australia does not offer a service to give businesses the opportunity to seek a Government opinion before proceeding with a transaction.[91] The development of such a service was discussed in the JSCT debates,[92] but never implemented.
There is such a service in the U.S.. American companies may apply to the Attorney-General for an opinion regarding a prospective payment to foreign public officials.[93] The Attorney-General is required to respond within 30 days with an opinion on whether the prospective conduct would violate the provisions of the Act.[94] There is a rebuttable presumption that a company which has received a positive opinion from the Attorney-General has complied with the Act.[95] Previous opinions are available in electronic form on the DOJ’s web site.[96] There are presently 22 such opinions.[97] It is generally considered highly advisable for American businesses to obtain a DOJ opinion if their potential transaction does not fit within the prescribed categories of “routine government action”.[98]
We strongly recommend the Australian government establish a similar service here to minimise uncertainty for, and encourage transparency and honesty by, Australian businesses.
Section 70.4(1)(c) of the Criminal Code requires individuals to record their conduct as soon as practicable to claim the benefit of a facilitation defence.[99] This record must describe the value of the benefit conferred upon the public official[100], the date,[101] the identity of the foreign public official,[102] and the “particulars of the routine government action that was sought to be expedited or secured”.[103] If the benefit is conferred upon someone other than the foreign public official, this other person must also be identified. The record must also be signed by the person who has made the payment or contain some other means of verifying their identity.[104]
In Australia, the failure to keep a record of the conduct is not an offence.[105] In the U.S., a payment recorded inaccurately, regardless of its significance or materiality, is a violation of U.S law under the FCPA.[106]
The record-keeping provisions of the Income Tax Assessment Act 1997 (Cth) differ from those in the Criminal Code. The ITA anti-bribery provisions do not make specific reference to the record-keeping requirements specified in Section 70.4(3) of the Code. The ATO reasons that the standard requirements in Section 262A of the Income Tax Assessment Act 1936 (Cth) are sufficient.[107] Section 262A provides that “a person carrying on a business must keep records that record and explain all transactions and other acts engaged in by the person that are relevant for any purpose” of the Act. The minimum amount of information the ATO believes is needed to understand the features of a transaction is the date, amount, and character of the transaction.[108]
The US FCPA accounting standards are similar to those imposed by Australia’s ITA. American businesses must “keep books, records, and accounts, which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the issuer.”[109] “Reasonable detail” implies a “level of detail and degree of assurance as would satisfy prudent officials in the conduct of their own affairs.”[110]
The requirement for the signature of the maker of the payment under the Criminal Code is not duplicated in the ITA. Therefore, a record does not have to be kept in accordance with the Criminal Code provisions in order to claim a tax deduction for facilitation payments under the ITA.[111]
The record-keeping requirements of the Criminal Code are unjustifiably onerous. A well-advised corporate officer should probably refuse to sign records of payments, that, while legitimate facilitation payments under Australian laws, would nonetheless probably violate local criminal law in the place where they were paid, particularly as the officer was probably in the foreign jurisdiction when making the payment, and thus may well be there again in the future.[112] Likewise, a company should not wish to open its officers abroad to potential liability for payments to foreign government officials.[113] A representative of the Australian Chamber of Commerce and Industry has noted that such a record could be perceived as “an admission of guilt” by those involved in the transaction.[114]
Obviously, there must be some record-keeping requirements to claim the benefit of the facilitation defence, but the requirements of Section 70.4 are oppressive and could entice companies to adopt a culture of non-compliance. The provisions of Section 70.4 of the Criminal Code should be made to correspond with the more reasonable provisions of the ITA.
The amendment to the Criminal Code was accompanied by the Taxation Laws Amendment Act (No 3) 1999 (Cth) to bring Australia’s taxation laws into line with the Convention. Until recently, the tax laws of most developed countries allowed bribes paid to foreign public officials to be deducted from a company’s taxes as a legitimate business expense. Prior to the introduction of amending legislation in 1999, the Income Tax Assessment Act 1997 allowed tax deductions for outgoings incurred for the purpose of producing taxable income.[115] The Act did not distinguish between outgoings incurred in pursuit of legal and illegal activity and so bribes paid to foreign public officials were deductible. This is no longer the case, which appears to be a far preferable policy position.[116] Facilitation payments remain deductible.[117]
It is important that legislative provisions draw a “bright line” signalling the point past which individuals subject to that law cannot go.[118] This is particularly so when there are serious criminal sanctions for crossing the line. Clear standards make it easier for companies bound by the rule to “manage across a variety of cultures and regimes.”[119] The facilitation payments defence under Section 70.4 of the Code does not meet this standard.[120]
The ATO has published bribery awareness guidelines to assist its auditors.[121] The guidelines are to assist ATO’s auditors to determine whether a particular payment is a bribe or a facilitation payment under the Code.[122] At the time of writing, the ATO was still working on a “guide to help businesses manage their tax obligations in this important area”.[123]
Recent efforts have been made to bring the provisions of the Income Tax Assessment Act 1997 into line with those in the Criminal Code. The International Trade Integrity Bill 2007,[124] tabled in response to the Cole Inquiry report, seeks to “strengthen enforcement of all United Nations (UN) sanctions and combat foreign bribery”.[125] Most notably, the definition of “facilitation payment” in the Income Tax Assessment Act 1997 now parallels the definition in the Criminal Code.[126] However, the Bill does not address the inconsistencies between the record-keeping provisions of the Criminal Code and the Income Tax Assessment Act 2007.
There has been a push for the Australian Federal Police to make foreign bribery cases a high priority.[127] If Australian companies are to face increased levels of enforcement, and even if they are not, fairness dictates they are given clear rules to guide their actions.
Some argue the answer to the facilitation payment problem lies in the reasonable exercise of discretion by prosecutors, ie. that only cases of large payments made to foreign officials to secure major contracts, and thus at the expense of competitors, will be prosecuted.[128] However, prosecutorial discretion is capable of being politicised, or at least of having the appearance of having been politicised.[129] And companies and their officers are unlikely to find much comfort in relying on a discretion, as Mr. Herzberg would attest, given the Vitusa case.[130] The best laws are clear laws. The rule of law demands no less. Prosecutorial discretion does not provide legal certainty and is very much a second best solution.[131]
Attempts to date to draft such rules have not satisfied the desire of Australian businesses for a legal “bright line”. A set monetary limit would discourage individuals from pushing the envelope and hoping payments qualify as facilitation payments, and will save the courts from having to interpret whether transactions breach the Code.
The main argument of critics of a monetary limit is that the amount of an acceptable facilitation payment will vary from country to country.[132] A test based on national income levels would address this problem, while providing the needed certainty and clarity. However, as we saw in the examples given, a test based on national income levels produces wildly different levels of acceptable facilitation payments in different countries.
The Commonwealth should develop a system by which businesses can receive a prospective opinion on whether their proposed conduct will breach the anti-bribery provisions of the Criminal Code. The ATO and Australian Competition and Consumer Commission (ACCC) have comparable services in place and there is simply no reason not to extend such a service to this situation.[133]
Such a service may encourage businesses otherwise hesitant to conduct business overseas to participate, and should persuade businesses already engaged in such business to be more forthcoming about their conduct. Publishing these opinions, as they are delivered over time, as is done in the U.S., would create a useful resource for other companies.
The record-keeping requirements of the facilitation defence are difficult to implement in practice and should be amended. The requirements of Section 70.4(3) of the Criminal Code and Section 262A of the ITA differ such that one could receive tax deductions under the ITA for payments that do not meet the recording requirements of Section 70.4(3) of the Criminal Code. The existing recording requirements under the ITA are sufficient for authorities to gain insight into the workings of a transaction and should serve as a template for a revised Section 70.4(3).
In summary, we propose the following:
These measures would clarify the law concerning facilitation payments and make the defence more usable and understandable for business. With these measures in place, Australian businesses will be able to pursue business opportunities abroad sure of the legal consequences at home of their actions.
[*]
Professor, Faculty of Law, University of New South Wales; Program Leader,
Security & Prosperity Program, Australia 21, see www.australia21.org.au. Our thanks to
David Chaikin, Paul Fairall and Alex Steel for their most helpful comments upon
earlier drafts of this paper. All
responsibility is ours.
[**] B. Mgmt
(Dalhousie), JD (Hons) (Bond), LLM Candidate (Georgetown).
[1] At the time of
writing, the investigation by the Australian Federal Police was ongoing: Richard
Baker, ‘Police asked to widen
Woodside probe’, The Age
(Melbourne), 3 May 2007, available at
<http://www.theage.com.au/news/investigations/police-asked-to-widen-woodside-probe/2007/05/02/1177788224975.html>
accessed on 12 July 2007. See also Kate Askew & Violeta Ayala, ‘Police
start Woodside probe over bribery claim’,
The Age (Melbourne), 13
October 2006, available at
<http://www.theage.com.au/news/business/police-start-woodside-probe-over-bribery-claim/2006/10/12/1160246263011.html>
accessed on 1 July 2007.
[2] Fleur Anderson,
‘AWB fallout: Tax Office cracks down on kickbacks’, Australian
Financial Review (Melbourne) 4 October 2006,
1.
[3] Marian
Wilkinson, “Iraqi kickbacks tax deductible”, Sydney Morning
Herald, Dec 20, 2006; and Phillip Coorey & Marian Wilkinson,
“Kickbacks tax-deductible”, Sydney Morning Herald, Dec 21,
2006. The Cole Inquiry found that while the payments did breach the terms of the
U.N. Oil for Food Programme, they were not
illegal under Iraqi law, and thus the
defence available in Section 70.3(1) of the Criminal Code was available: see
Australian Government
Attorney-General’s Department, Report of the
Inquiry into certain Australian companies in relation to the UN Oil-for-food
Programme (2006), available at
<http://www.ag.gov.au/agd/WWW/unoilforfoodinquiry.nsf/Page/Report>
accessed on 4 July 2007, see volume 5, pp 347 & 348.
[4] Just how
business is done? A review of Australian business’ approach to bribery and
corruption (2006) Centre for Australian Ethical Research [3]
<http://www.caer.org.au/publications/CAER_bribery_report_print.pdf>
at 12
June 2007.
[5]
Australia: Phase 2 (2006) Organisation for Economic Co-operation and
Development Directorate for Financial and Enterprise Affairs
<http://www.oecd.org/dataoecd/57/42/35937659.pdf>
at 27 July
2006.
[6] Daniel
Kaufmann, ‘Myths and Realities of Governance and Corruption’ in
Schwab, Klaus and Porter (eds), The Global Competitiveness Report 2005-2006
(Geneva: Palgrave Macmillan, 2006), available at
<http://www.worldbank.org/wbi/governance/pdf/2-1_GCR_Kaufmann.pdf>
at 30
October 2006.
[7]
Eduardo Wiesner, Mancur Olson Jr. & Peter Eigen, ‘Transaction cost
economics and public sector rent-seeking in developing
countries: toward a
theory of government failure’ in World Bank’s Evaluation &
Development: The Institutional Dimension (1998) 108; and Bryan W. Husted,
‘Honor Among Thieves: A Transaction-Cost Interpretation of Corruption in
Third World Countries’
(1994) 4(1) Business Ethics Quarterly
17.
[8] Joint
Standing Committee on Treaties, OECD Convention on Combating Bribery,
Official Hansard Report (March 9, 1998) 7 (Senator
Vanstone).
[9]
Bribe Payer’s Index (BPI) 2006 (2006) Transparency International
<http://www.transparency.org/content/download/9757/71853/version/1/file/BPI_2006_Analysis_Report_270906_FINAL.pdf>
at 26 October
2006.
[10]
Transparency International Bribe Payer’s Index 2002 (2002)
Transparency International
<http://www.transparency.org/policy_research/surveys_indices/bpi/complete_report_bpi_2002>
at 27 October
2006.
[11] 15 U.S.C
§§ 78dd-1 et
seq.
[12]
Christopher K. Carlberg, ‘A Truly Level Playing Field for International
Business: Improving the OECD Convention on Combating
Bribery Using Clear
Standards’ (2003) 26 Boston College International & Comparative Law
Review 95,
97.
[13] 19 U.S.C
§ 2901.
[14]
OECD Convention on Combating Bribery of Foreign Public Officials, Opened
for signature 17 December 1997, DAFFE/IME/BR(97)20, Art 1(1) (entered into force
15 February
1999).
[15] OECD
Convention on Combating Bribery of Foreign Public Officials, Opened for
signature 17 December 1997, DAFFE/IME/BR(97)20, Art 1(1) (entered into force 15
February
1999).
[16]
Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999
(Cth) Schs
1.
[17] Criminal
Code Amendment (Bribery of Foreign Public Officials Act) 1999 (Cth) Schs
1.
[18] Email from
the Department of Public Prosecutions to Mark Danielson, 12 July 2007 (copy on
file with author) and see Question on Notice
62, question of Senator Ludwig to
the Senate Legal and Constitutional Legislation Committee - Hearing date 24 May
2006, available
at:
<http://www.aph.gov.au/Senate/committee/legcon_ctte/estimates/bud_0607/ag/index.htm>
at 5 November 2006; and Australia: Phase 2 (2006) Organisation for
Economic Co-operation and Development Directorate for Financial and Enterprise
Affairs
<http://www.oecd.org/dataoecd/57/42/35937659.pdf>
at 27 July
2006.
[19]
Criminal Code (Cth) s
70.2(1)(a)(i).
[20]
Criminal Code (Cth) s
70.2(1)(a)(i)(ii).
[21]
Criminal Code(Cth) s
70.2(1)(a)(i)(iii).
[22]
Criminal Code (Cth) s
70.2(1)(a)(i)(iv).
[23]
Criminal Code (Cth) s
70.2(1)(b).
[24]
Criminal Code (Cth) s
70.2(1)(c)(i).
[25]
Criminal Code (Cth) s
70.2(1)(c)(ii).
[26]
Criminal Code (Cth) s 70.5(1). For a succinct, illuminating consideration
of the territorial and nationality principles of the jurisdiction of
states, see
David Chaikin, ‘Extraterritoriality and the Criminalization of Foreign
Bribes’, in B.A.K. Rider (ed), Corruption: The Enemy Within (1997)
285, 292-295.
[27]
Joint Standing Committee on Treaties, OECD Convention on Combating
Bribery, Official Hansard Report (March 9, 1998) 7 (Senator
Vanstone).
[28]
Alexandra Wrage and Matthew Vega, ‘Small Bribes Buy Big Problems’,
ACC Docket 25, no. 7 (September 2007), 102-112 and
(2007) Center for
International Private Enterprise [1]
<http://www.cipe.org/publications/fs/pdf/092107.pdf>
at 14 October
2007.
[29] Ibid.
[30] Email from
David Chaikin to Ross Buckley, 15 November 2006 (copy on file with author). The
arguments against allowing facilitation
payments are well made in Wrage and
Vega, ibid .
[31]
Wrage & Vega, above n
28.
[32]
Ibid.
[33]
Ibid.
[34]
Ibid.
[35] Terence Cole was the
Commissioner in the Australian Wheat Board Inquiry but here was speaking outside
the Inquiry: see TRH Cole
AO RFD QC, ‘Corruption’ (Address to the
6th National Investigations Symposium) 2 November 2006, available at
<http://www.nsw.ipaa.org.au/00_pdfs/TCole.pdf>
at 4 July
2007.
[36] Asia
Pacific Economic Cooperation, ‘APEC Tackles Corruption with Code of
Conduct for Business’ (News Release, 6 September
2007), available at
<http://www.apec.org/apec/news___media/media_releases/060907_aus_bizcodeconduct.html>
accessed 16 October 2007 and see Clause 3 (c.) of see clause 3 c. of the
Business Integrity and Transparency Principles for the Private Sector
Asia Pacific Economic Cooperation
<http://www.apec.org/apec/news___media/media_releases/060907_aus_bizcodeconduct.MedialibDownload.v1.html?url=/etc/medialib/apec_media_library/downloads/taskforce/act.Par.0002.File.v1.1>
at 14 October
2007.
[37] E.Jane
Ellis, Globalisation, Corruption, and Poverty Reduction (2001)
Development Bulletin [26]
<http://devnet.anu.edu.au/online%20versions%20pdfs/55/8Ellis55.pdf>
at 4
August 2006.
[38]
Steven R. Salbu, ‘A Delicate Balance: Legislation, Institutional Change,
and Transnational Bribery’ (2000) 33 Cornell International Law
Journal 657,
664.
[39] (Cth),
OECD Convention on Combating Bribery and Draft Implementing Legislation,
16th Report (June 1998)
84.
[40]
Australia: Phase 2 (2006) Organisation for Economic Co-operation and
Development Directorate for Financial and Enterprise Affairs [46]
<http://www.oecd.org/dataoecd/57/42/35937659.pdf>
at 27 July
2006.
[41]
Australia: Phase 2 (2006) Organisation for Economic Co-operation and
Development Directorate for Financial and Enterprise Affairs [46]
<http://www.oecd.org/dataoecd/57/42/35937659.pdf>
at 27 July
2006.
[42]
Commentary 9 of the OECD Convention provides: Small
“facilitation” payments do not constitute payments made “to
obtain or retain business or other improper
advantage" within the meaning of
paragraph 1 and, accordingly, are also not an offence. Such payments, which, in
some countries,
are made to induce public officials to perform their functions,
such as issuing licenses or permits, are generally illegal in the
foreign
country concerned. (See Commentaries on the Convention on Combating Bribery
of Officials in International Business Transactions (1997) Organisation for
Economic Co-operation and Development
<http://www.oecd.org/document/1/0,2340,en_2649_34859_2048129_1_1_1_1,00.html>
at 31 October
2006.)
[43]
Ibid.
[44]
Criminal Code (Cth) s
70.4(1).
[45]
OECD Convention on Combating Bribery of Foreign Public Officials, Opened
for signature 17 December 1997, DAFFE/IME/BR(97)20, Art 1(1) (entered into force
15 February 1999) Commentary
9.
[46] Benny S
Tabalujan, ‘Proposal to Criminalise Bribery of Foreign Officials’
(July 1998) 72 Law Institute Journal 56,
58.
[47]
Australia: Review of the Implementation of the Convention and 1997
Recommendation (2000) Organisation for Economic Co-operation and Development
[1.1.9]
<http://www.oecd.org/dataoecd/0/29/2378916.pdf>
at 31 July
2006.
[48] Joint
Standing Committee on Treaties, OECD Convention on Combating Bribery,
Official Hansard Report (April 16, 1998) 8 (Mr.
Adams).
[49] Bills
Digest No. 176 1998-1999 Criminal Code (Bribery of Foreign Officials) Bill 1999
(Cth).
[50] Joint
Standing Committee on Treaties, OECD Convention on Combating Bribery,
Official Hansard Report (April 17, 1998) 42 (Mr.
Hardgrave).
[51]
Ibid, (Dr.
Chaikan).
[52]
Ibid.
[53] Joint
Standing Committee on Treaties, OECD Convention on Combating Bribery,
Official Hansard Report (April 16, 1998) 8 (Neil
Walker).
[54] Joint
Standing Committee on Treaties, OECD Convention on Combating Bribery,
Official Hansard Report (April 17, 1998) 74 (John
Broome).
[55]
Rebecca Koch, ‘The Foreign Corrupt Practices Act: It’s Time to Cut
Back the Grease and Add Some Guidance’ (2005) 28 Boston College
International and Comparative Law Review 379,
398.
[56] Robert S.
Levy, ‘The Antibribery Provisions of the Foreign Corrupt Practices Act of
1977: Are They Really as Valuable as We
Think They Are?’ (1985) 10
Delaware Journal of Corporate Law 71,
87.
[57] Rebecca
Koch, ‘The Foreign Corrupt Practices Act: It’s Time to Cut Back the
Grease and Add Some Guidance’ (2005) 28 Boston College International
and Comparative Law Review 379,
398.
[58] Nii Lante
Wallace-Bruce, ‘Corruption and Competitiveness in Global Business –
The Dawn of a New Era’ [2000] MelbULawRw 13; (2000) 24 Melbourne University Law Review
349, 370.
[59]
Email from Alex Steel to Ross Buckley, 18 July 2007 (copy on file with author).
[60] (Cth),
OECD Convention on Combating Bribery and Draft Implementing Legislation,
16th Report (June 1998)
79.
[61] Martijn
Wilder and Michael Ahrens, ‘Australia’s Implementation of the OECD
Convention on Combating Bribery of Foreign
Public Officials in International
Business Transactions’ [2001] MelbJlIntLaw 22; (2001) 2 Melbourne Journal of International
Law 568,
584.
[62] Joint
Standing Committee on Treaties, OECD Convention on Combating Bribery,
Official Hansard Report (April 17, 1998) 54 (Senator
Coonan).
[63]
Walter Perkel, ‘Foreign Corrupt Practices Act’ (2003) 40 American
Criminal Law Review 683,
697.
[64] (Cr. No.
94-253)(MTB), D.N.J.,
1994
[65] (Cr. No.
94-254) (MTB), D.N.J.,
1994.
[66] Joint
Standing Committee on Treaties, OECD Convention on Combating Bribery,
Official Hansard Report (April 18, 1998) 22 (Gayle
Hill).
[67] Joint
Standing Committee on Treaties, OECD Convention on Combating Bribery,
Official Hansard Report (April 17, 1998) 53 (Jennifer
Hill).
[68] Rebecca
Koch, ‘The Foreign Corrupt Practices Act: It’s Time to Cut Back the
Grease and Add Some Guidance’ (2005) 28 Boston College International
and Comparative Law Review 379,
401.
[69]
Criminal Code (Cth) s
70.4(1)(b).
[70]
China’s National Per Capita Income Reaches US$1,740 (2006)
Chinagate.com.cn
<http://www.chinagate.com.cn/english/48305.htm>
at 1
November 2006.
[71]
Rank Order – GDP – Per Capita (PPP) (2006) CIA – The
World Factbook
<https://cia.gov/cia/publications/factbook/rankorder/2004rank.html> at 1
November 2006.
[72] The
Australian amending legislation could make explicit reference to these figures
as providing the basis for the calculation.
[73] Criminal
Code (Cth) s
70.4(2)(a).
[74]
Criminal Code (Cth) s
70.4(2)(b)(i).
[75]
Criminal Code (Cth) s
70.4(2)(b)(ii).
[76]
Criminal Code (Cth) s
70.4(2)(b)(iii).
[77]
Criminal Code (Cth) s
70.4(2)(b)(iv).
[78]
Criminal Code (Cth) s
70.4(2)(b)(v).
[79]
Criminal Code (Cth) s
70.4(2)(b)(vi).
[80]
Criminal Code (Cth) s
70.4(2)(b)(vii).
[81]
Foreign Corrupt Practices Act 1977 15 U.S.C §
78dd-2(h)(4)(A).
[82]
Rebecca Koch, ‘The Foreign Corrupt Practices Act: It’s Time to Cut
Back the Grease and Add Some Guidance’ (2005) 28 Boston College
International and Comparative Law Review 379,
390.
[83]
Ibid.
[84]
Criminal Code (Cth) s 70.4(2)(c),
(d).
[85]
Australia: Review of the Implementation of the Convention and 1997
Recommendation (2000) Organisation for Economic Co-operation and Development
[1.1.9]
<http://www.oecd.org/dataoecd/0/29/2378916.pdf>
at 31 July
2006.
[86] Rex J.
Zedalis, ‘How Does the New OECD Convention on Bribery Stack Up Against the
Foreign Corrupt Practices Act?’ (1998) 32 Journal of World Trade
167, 170.
[87]
In the Matter of BJ Services Co., SEC Administrative Proceeding File No.
3-11427 (March 10,
2004).
[88] Rebecca
Koch, ‘The Foreign Corrupt Practices Act: It’s Time to Cut Back the
Grease and Add Some Guidance’ (2005) 28 Boston College International
and Comparative Law Review 379,
391.
[89]
Australia: Phase 2 (2006) Organisation for Economic Co-operation and
Development Directorate for Financial and Enterprise Affairs [46]
<http://www.oecd.org/dataoecd/57/42/35937659.pdf>
at 27 July
2006.
[90] See
amended document: Bribery of Foreign Public Officials is a crime (2006)
Attorney-General’s Department
<http://www.ag.gov.au/foreignbribery>
at 11 July
2007.
[91]
Australia: Phase 2 (2006) Organisation for Economic Co-operation and
Development Directorate for Financial and Enterprise Affairs [45]
<http://www.oecd.org/dataoecd/57/42/35937659.pdf>
at 27 July
2006.
[92] Joint
Standing Committee on Treaties, OECD Convention on Combating Bribery,
Official Hansard Report (April 17, 1998) 43 (Dr.
Chaikan).
[93]
Foreign Corrupt Practices Act 1977 15 U.S.C §
78dd-2(f)(1).
[94]
Foreign Corrupt Practices Act 1977 15 U.S.C §
78dd-2(f)(1).
[95]
Foreign Corrupt Practices Act 1977 15 U.S.C §
78dd-2(f)(1).
[96]
See Opinion Procedure Releases (2006) United States Department of Justice
– Foreign Corrupt Practices Act – Fraud Section
<http://www.usdoj.gov/criminal/fraud/fcpa/opinion/>
at 11 July
2007.
[97]
Ibid.
[98]
Rebecca Koch, ‘The Foreign Corrupt Practices Act: It’s Time to Cut
Back the Grease and Add Some Guidance’ (2005) 28 Boston College
International and Comparative Law Review 379,
400.
[99]
Criminal Code (Cth) s
70.4(1)(c).
[100]
Criminal Code (Cth) s
70.4(3)(a).
[101]
Criminal Code (Cth) s
70.4(3)(b).
[102]
Criminal Code (Cth) s
70.4(3)(c).
[103]
Criminal Code (Cth) s
70.4(3)(e).
[104]
Criminal Code (Cth) s
70.4(3)(f).
[105]
Bills Digest No. 176 1998-1999 Criminal Code (Bribery of Foreign Officials)
Bill 1999 (Cth). Available at:
<http://www.aph.gov.au/library/pubs/bd/1998-99/99bd176.htm>
at 31 October
2006.
[106]
Walter Perkel, ‘Foreign Corrupt Practices Act’ (2003) 40 American
Criminal Law Review 683,
687.
[107]
Explanatory Memorandum, House of Representatives, Taxation Laws
Amendment Bill (No 8) 1999,
4.49.
[108]Australia:
Phase 2 (2006) Organisation for Economic Co-operation and Development
Directorate for Financial and Enterprise Affairs [28]
<http://www.oecd.org/dataoecd/57/42/35937659.pdf>
at 27 July
2006.
[109]
Foreign Corrupt Practices Act 1977 15 U.S.C §
78m(b)(2)(A).
[110]
Foreign Corrupt Practices Act 1977 15 U.S.C §
78m(b)(7).
[111]
Mid-Term Study of Phase 2 Reports (2006) Organisation for Economic
Co-operation and Development Directorate for Financial and Enterprise Affairs
[61]
<http://www.oecd.org/dataoecd/19/39/36872226.pdf>
at 31 July
2006.
[112]
Alexandra Wrage and Kerry Mandernach, ‘Facilitation Payments’ (2006)
UN Global Compact
<http://www.unglobalcompact.org/docs/issues_doc/7.7/case_stories/BAC_2A.4.pdf>
at 4 August
2006.
[113] Joint
Standing Committee on Treaties, OECD Convention on Combating Bribery,
Official Hansard Report (April 17, 1998) 15 (James
Dunstan).
[114]
Australia: Phase 2 (2006) Organisation for Economic Co-operation and
Development Directorate for Financial and Enterprise Affairs [46]
<http://www.oecd.org/dataoecd/57/42/35937659.pdf>
at 27 July
2006.
[115]
Income Tax Assessment Act 1997 (Cth) s 8-1.
[116] Income
Tax Assessment Act 1997 (Cth) s 26-52(1). See also the Explanatory
Memorandum for the Taxation Laws Amendment Bill (No. 8) 1999,
available at
<http://law.ato.gov.au/atolaw/view.htm?docid='NEM/EM99023/NAT/ATO/00005>
at 1 November 2006; see also Rules About Deductibility of Certain Kinds of
Amounts (2000) ATO Legal Database
<http://law.ato.gov.au/atolaw/view.htm?locid='PAC/19970038/26-52>
at 12
July 2007.
[117]
Income Tax Assessment Act 1997 (Cth) s 26-52(4). See also Explanatory
Memorandum and ATO Legal Database,
Ibid.
[118]
Philip M. Nichols, ‘The Myth of Anti-Bribery Laws as Transnational
Intrusion’ (2000) Cornell International Law Journal 627, 642; and
Andrew Ashworth, Principles of Criminal Law (Oxford University Press,
4th ed, 2003) at
77.
[119]
Nichols, above n 118,
643.
[120]
Compilation of Recommendations Made in the Phase 2 Reports (2006)
Organisation for Economic Co-operation and Development Directorate for Financial
and Enterprise Affairs [3]
<http://www.oecd.org/dataoecd/51/45/37171905.pdf>
at 26 July 2006. Some
evidence of this uncertainty is seen in the recent OECD review of
Australia’s compliance with its
convention which noted that the code of
conduct of an Australian resources company provided misleading information about
the facilitation
defence and other companies were not aware of the
record-keeping requirements: Mid-Term Study of Phase 2 Reports (2006)
Organisation for Economic Co-operation and Development Directorate for Financial
and Enterprise Affairs [61]
<http://www.oecd.org/dataoecd/19/39/36872226.pdf>
at 31 July 2006.
[122] Fleur
Anderson, ‘AWB fallout: Tax Office cracks down on kickbacks’,
Australian Financial Review (Melbourne) 4 October 2006,
1.
[123]
Guidelines for Tax Office auditors – understanding and dealing with
bribery (2006) Australian Tax Office
<http://www.ato.gov.au/corporate/content.asp?doc=/content/81899.htm>
at 11
July 2007.
[124]
(Cth).
[125]
Explanatory Memorandum, International Trade Integrity Bill 2007,
1.
[126]
Income Tax Assessment Act 1997 (Cth) s
26-52(4).
[127]
Compilation of Recommendations Made in the Phase 2 Reports (2006)
Organisation for Economic Co-operation and Development Directorate for Financial
and Enterprise Affairs [3]
<http://www.oecd.org/dataoecd/51/45/37171905.pdf>
at 26 July
2006.
[128] Joint
Standing Committee on Treaties, OECD Convention on Combating Bribery,
Official Hansard Report (April 17, 1998) 55 (Jennifer Hill). The Commonwealth
Director of Public Prosecutions has issued a “Note
on prosecutions for the
bribery of foreign public officials under Division 70 of the Criminal
Code”, available at
<http://www.cdpp.gov.au/Prosecutions/Policy/ProsecutionPolicy.pdf>
accessed on 7 July 2007. This Note gives effect to Article 5 of the OECD
Convention by providing that the decision to prosecute
under Division 70
“should not be influenced by considerations of national economic interest,
the potential effect upon relations
with another State, or the identity of the
natural or legal persons involved.” This doesn’t really effect the
issue
under consideration here.
[129] (Cth),
OECD Convention on Combating Bribery and Draft Implementing Legislation,
16th Report (June 1998)
76.
[130] (Cr.
No. 94-254) (MTB), D.N.J., Apr.
1994.
[131] As
noted by Mr. Peter Willis in the JSCT debates, a clearly promulgated law is a
practical necessity:
“Personally, I have no doubt that prosecutors generally would not
pursue minor infractions but I believe that it is—as
a desirable policy
matter, if on no other basis—a good thing for the legislation to spell out
a defence or an exemption where
clearly it is understood by all concerned,
including the legislators in the parliament, that no-one would wish to prosecute
in those
cases”
Joint Standing Committee on Treaties, OECD
Convention on Combating Bribery, Official Hansard Report (April 16, 1998) 37
(Peter
Willis).
[132]
Joint Standing Committee on Treaties, OECD Convention on Combating
Bribery, Official Hansard Report (April 16, 1998) 61 (Peter
Rooke).
[133]
(Cth), OECD Convention on Combating Bribery and Draft Implementing
Legislation, 16th Report (June 1998) 75.
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