[ CCH Note: Subdiv A heading will be inserted by No 5 of 2024, s 3 and Sch 1 item 1, applicable in relation to conduct engaged in on or after 8 September 2024. The heading will read:

Subdivision A - Definitions

[ CCH Note: S 70.2 will be substituted by No 5 of 2024, s 3 and Sch 1 item 6, applicable in relation to conduct engaged in on or after 8 September 2024. S 70.2 will read:

SECTION 70.2 Bribing a foreign public official  

(1)
A person commits an offence if:

(a) the person:

(i) provides a benefit to another person; or

(ii) causes a benefit to be provided to another person; or

(iii) offers to provide, or promises to provide, a benefit to another person; or

(iv) causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and

(b) the first-mentioned person does so with the intention of improperly influencing a foreign public official (who may be the other person) in order to obtain or retain business or a business or personal advantage (whether or not for the first-mentioned person).

Note:

See also section 70.2A . For defences, see sections 70.3 and 70.4 .

(2)
For the purposes of paragraph (1)(b) :

(a) the first-mentioned person does not need to intend to influence a particular foreign public official; and

(b) the first-mentioned person does not need to intend to obtain or retain particular business or a particular business or personal advantage; and

(c) business, or a business or personal advantage, does not need to be actually obtained or retained.

Penalty for individual

(3)
An offence against subsection (1) committed by an individual is punishable on conviction by imprisonment for not more than 10 years, a fine not more than 10,000 penalty units, or both.

Penalty for body corporate

(4)
An offence against subsection (1) committed by a body corporate is punishable on conviction by a fine not more than the greatest of the following:

(a) 100,000 penalty units;

(b) if the court can determine the value of the benefit that the body corporate, and any body corporate related to the body corporate, have obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence - 3 times the value of that benefit;

(c) if the court cannot determine the value of that benefit - 10% of the annual turnover of the body corporate during the period (the turnover period ) of 12 months ending at the end of the month in which the body corporate committed, or began committing, the offence.

[ CCH Note: S 70.2A will be inserted by No 5 of 2024, s 3 and Sch 1 item 6, applicable in relation to conduct engaged in on or after 8 September 2024. S 70.2A will read:

SECTION 70.2A Improper influence  
Determination to be a matter for the trier of fact

(1)
In a prosecution for an offence against section 70.2 , the determination of whether influence is improper is a matter for the trier of fact.

Matters that must be disregarded

(2)
In determining whether influence is improper for the purposes of paragraph 70.2(1)(b) , a trier of fact must disregard the following:

(a) the fact that the benefit, or the offer or promise to provide the benefit, may be, or be perceived to be, customary, necessary or required in the situation;

(b) any official tolerance of the benefit;

(c) if particular business or a particular business or personal advantage is relevant to proving the matters referred to in that paragraph - the following:

(i) if the value of the business or advantage is insignificant - that fact;

(ii) in the case of an advantage - any official tolerance of the advantage;

(iii) in the case of an advantage - the fact that the advantage may be customary, or perceived to be customary, in the situation.

Matters to which regard may be had

(3)
In determining whether influence is improper for the purposes of paragraph 70.2(1)(b) , a trier of fact may have regard to the following:

(a) the recipient or intended recipient of the benefit;

(b) the nature of the benefit;

(c) the manner of the provision of the benefit (or, if applicable, the offered or promised manner of the provision of the benefit);

(d) whether the value of the benefit is disproportionate to the value of any consideration provided or purported to have been provided for the benefit;

(e) if the benefit was provided, or the offer or promise to provide the benefit was made, in the absence of any legal obligation to do so - that fact;

(f) whether the benefit was provided, or the offer or promise to provide the benefit was made, dishonestly;

(g) whether, and to what extent, the provision of the benefit, or the offer or promise to provide the benefit, is recorded or documented;

(h) if the provision of the benefit, or the offer or promise to provide the benefit, is recorded or documented:

(i) the accuracy of the record or documentation; and

(ii) whether the record or documentation is consistent with the ordinary practices of the person who made the record or documentation;

(i) whether there is evidence that due diligence was exercised by the first-mentioned person in section 70.2 in relation to the benefit, or the offer or promise to provide the benefit;

(j) whether any of the following conduct is contrary to a written law in force in the place where that conduct occurs:

(i) the provision of the benefit, or the offer or promise to provide the benefit;

(ii) the acceptance of the benefit;

(iii) any conduct directly connected with conduct referred to in subparagraph (i) or (ii) ;

(k) if particular business or a particular business or personal advantage is relevant to proving the matters referred to in that paragraph - the following:

(i) whether the business or advantage was awarded on a competitive or non-commercial basis;

(ii) whether there is any demonstrable conflict of interest in the provision of the business or advantage.

(4)
To avoid doubt, subsection (3) does not limit the matters to which the trier of fact may have regard.