Anti-Bribery Policy

Policy outline

The Department of Enterprise, Investment and Trade (“the Department”) has zero tolerance for fraud and corruption, including bribery. 

Departmental staff must not engage in any conduct that could be considered bribery. Bribery is not lawful in any country and is a breach of the Department’s Code of Ethics and Conduct and a breach of the Code of Ethics and Conduct for NSW Government Sector Employees. 

Failure to prevent bribery can have major impacts at both an organisational and an individual level, including reputational damage and financial loss. Payment of a bribe may result in that person and/or the Department being liable to prosecution under NSW, Australian or foreign law.

Policy coverage

All persons undertaking work for or engaged by the Department in either a paid or unpaid capacity (staff) must comply with this policy. This includes all staff both within and outside of Australia. 

Principles

All staff at the Department must work within the core values of the Code of Ethics and Conduct for NSW Government Sector Employees, the Department’s Code of Ethics and Conduct and in line with Australian and other local laws. 

Under no circumstances are staff allowed to engage in bribery or to solicit or take receipt of a bribe. You must follow these principles: 

• Bribery is an offence under the Crimes Act 1900 (NSW) relating to corruptly receiving commissions or other corrupt practices
• It is a criminal offence under Australian law to bribe a foreign public official in a country outside Australia to influence them in their official capacity to obtain or retain any business or business advantage
• When bribery occurs either wholly or partly outside Australia and involves a foreign public official, Departmental staff and clients can be prosecuted under Australian law and potentially other jurisdictions 
• Your family or friends should also not engage in any conduct that could be considered bribery, where the benefit is a direct result of your official duties 
• You must never solicit a bribe
• You must report all bribes and/or suspected bribes immediately 
• You must comply with the Department’s Gifts, Benefits and Hospitality Policy 
• If in doubt, contact the Departments’ Director Governance, Audit and Risk.

Definitions

What is a bribe? 

A bribe is a benefit given or offer sought or made with the intention of influencing a person to take or not to take a specific action. 

Bribery is an offence under the Crimes Act 1900 (NSW) and carries with it a maximum penalty of seven years imprisonment. To corruptly receive commissions is an offence if you corruptly receive, solicit, give or offer a benefit as an inducement to do or not do something or to show or not show favour of disfavour to someone.

A person is guilty of committing an offence under Australian Commonwealth legislation of bribing a foreign official if:

1. The person provides a benefit to another person, or offers or promises to provide a benefit to another person, or causes a benefit to be provided, offered, or promised to another person; and 
2. The benefit is not legitimately due to the other person; and 
3. Step 1 was carried out with the intention of influencing a foreign public official (who may or may not be the other person) in the exercise of the official’s duties as a foreign public official, to obtain or retain any business or business advantage, which is not legitimately due.

Bribery of a foreign official is a serious crime under Australian law, punishable by fines and imprisonment. Australian criminal law has extraterritorial effect and may apply to this conduct. 

Bribery can occur when a Departmental employee is acting on behalf of a client or working with an agent of the client. 

Know your responsibilities

Managers

Managers must: 

• ensure that all their staff understand this policy and implement it effectively
• notify the Director Governance, Audit and Risk of any concerns that staff may have breached this policy and ensure a record is completed. 

Staff

As a Departmental staff member, you:

• are responsible for complying with this policy and related procedures 
• must ensure you are familiar with the contents of the policy 
• must ensure that you act with integrity and demonstrate that you are not influenced in the performance of your duties
• must always ensure, including when you are acting on behalf of clients (within and outside of Australia), to avoid any action that would be considered bribery, including of a foreign official 
• must report any information of bribery or other corrupt acts
• must when working outside of Australia familiarise yourself with applicable local laws in the places you work and travel to for work.

Director, Governance, Audit & Risk

The Director, Governance, Audit and Risk: 

• maintains this Policy  
• reviews any reports of bribery and provides guidance and assistance to managers and staff on the application of this policy 
• maintains a central register of bribery reports
• reports all instances of bribery to General Counsel and Deputy Secretary Engagement, Operations and Governance
• determines with consideration of General Counsel what referrals need to occur to the relevant Authorities.

Secretary

The Secretary has an obligation under the Independent Commission Against Corruption (ICAC) Act 1988 to inform ICAC of any matter which they suspect may concern corrupt conduct. Corrupt conduct includes bribery of public officials or public officials engaging in conduct that could be considered bribery. 

The Department may have additional reporting and disclosure obligations where it is suspected a crime has occurred or the bribe takes place outside of Australia or where a foreign party is involved.

What to do if you suspect a bribe has occurred? 

All staff must report any suspected bribery, corrupt conduct or concerns that suggests departmental staff may have breached the law or was approached with a bribery offer. This includes reports that have come from a third party or a client. 

Staff should also report any bribery concerns relating to clients or companies engaged by the Department. 

The following process applies:

• report the information to their relevant Senior Executive manager (e.g., Director and above); and
• report the matter by email marked ‘Sensitive: NSW Government’ to the Director Governance, Audit and Risk 
• do not discuss it with anyone involved, including the person who is alleged to have engaged in bribery and/or their client.

Further advice on making reports of wrongdoing is provided in the Public Interest Disclosure Policy including the support provided to staff who make reports of wrongdoing.

What to do if you suspect a bribe may have occurred with a foreign public official for staff outside of Australia?

Foreign officials outside Australia are not subject to the Australian Criminal Code.

If the information is reliable and credible, you should follow the process outlined above for reporting a suspected bribe. 

What to do if you suspect a bribe may occur or be offered? 

Should you become aware that a person from an Australian company is potentially engaging or considering engaging in a bribery offence either themselves or with Department staff have regard to your own position and obligations and then inform the person that:

• Australian criminal law has extraterritorial effect and may apply to such conduct
• the NSW Government cannot condone illegal conduct under any circumstances
• Department staff are under a duty to report this conduct. 

Clients must be made aware at all appropriate opportunities that Departmental staff will not carry out, condone, or ignore any act that will breach the law. This is particularly important in countries where local governance is weak, or there is a history of bribery as a means of doing business.

What occurs after a report has been made?

After a report has been made to the Director Governance, Audit and Risk or their team, they will acknowledge the report within two days and then review all the information. This will be recorded on the central bribery allegations register. 

The General Counsel and Deputy Secretary Engagement, Operations and Governance will be informed, and a determination will be made about actions to be undertaken including whether any referrals need to occur to the relevant Authorities. The Department would expect all staff to cooperate with any investigation and will provide support to staff if required.

The Department will make sure that staff who have reported wrongdoing, regardless of whether it is determined to be a public interest disclosure, are provided with access to ongoing support. The Director Governance, Audit and Risk will work with People and Culture to initiate and coordinate support.

The reporter will be provided with updates on actions undertaken by the Department on any report under this policy.

Non-compliance with this policy

The solicitation, acceptance or giving of a bribe as a staff member may result in disciplinary action being taken against the staff member.

Such behaviour can bring individual staff into disrepute, undermine productive working relationships in the workplace, hinder customer service delivery and damage public trust in the Department and/or the broader government sector. 

Advice

If you have doubts or concerns about how to apply this policy, then you should contact DEIT Governance for further advice.

Additional information can also be located on the Commonwealth Attorney General’s website that includes guides for Australian businesses on their responsibilities in relation to foreign bribery.

Variation

The Department may amend this policy from time to time as appropriate.

Related documents

• Code of Ethics and Conduct
• Fraud and Corruption Prevention Policy
• Gifts, Benefits and Hospitality Policy 
• P-Card Policy
• Travel Policy
• Public Interest Disclosure Internal Reporting Policy 

Related legislation 

• Commonwealth legislation - Criminal Code Act 1995 (Criminal Code) 
• NSW legislation - Crimes Act 1900 (NSW) No. 40