In 2011, Australia’s Attorney General issued a consultation paper seeking comment on proposed legislation that would eliminate the affirmative defense under Australia’s anti-bribery law for facilitation payments. As a practical matter, though the affirmative defense has yet to eliminated, given the breadth of the jurisdictional reach of the UK Bribery Act, updated compliance policies for Australian companies should prohibit facilitation payments. The UK Bribery Act does not provide an exception or affirmative defense for facilitation payments.
Yet for purposes of anti-bribery compliance, even without the elimination of the affirmative defense for facilitation payments, the documentary requirements for asserting the defense under Australian law can be daunting. As pointed out in the Explanatory Memorandum that accompanied the initial implementing legislation, the affirmative defense is largely modeled on the FCPA. Under section 70.4 of Australia’s Criminal Code Act 1995, when the value of the benefit is of a “minor nature,” an affirmative defense is provided where the conduct engaged in was “for the sole or dominant purpose of expediting or securing the performance of a routine governmental action of a minor nature”; and “as soon as practical after the conduct occurred, the person made a record of the conduct.”
To be effective as an affirmative defense, section 70.4(3) of the Criminal Code Act 1995 requires that the contents of the record set out:
(a) the value of the benefit concerned; and
(b) the date on which the conduct occurred; and
(c) the identity of the foreign public official in relation to whom the conduct occurred; and
(d) if that foreign public official is not the [person to whom the benefit is directed]; and
(e) particulars of the routine government action that was sought to be expedited or secured by the conduct; and
(f) the person’s signature or some other means of verifying the person’s identity.