Criminal Code Act 1995

Schedule - The Criminal Code

Section 3

CHAPTER 4 - THE INTEGRITY AND SECURITY OF THE INTERNATIONAL COMMUNITY AND FOREIGN GOVERNMENTS

Division 70 - Bribery of foreign public officials

Subdivision B - Bribery of foreign public officials

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SECTION 70.2 Bribing a foreign public official

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(1)

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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)

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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.

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History

S 70.2 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 formerly 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 benefit is not legitimately due to the other person; and

(c) the first-mentioned person does so with the intention of influencing a foreign public official (who may be the other person) in the exercise of the official ' s duties as a foreign public official in order to:

(i) obtain or retain business; or

(ii) obtain or retain a business advantage that is not legitimately due to the recipient, or intended recipient, of the business advantage (who may be the first-mentioned person).

Note:

For defences see sections 70.3 and 70.4.

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History

S 70.2(1) amended by No 4 of 2010, s 3 and Sch 8 items 1 and 2, by repealing the penalty and substituting the note for notes 1 and 2, effective 20 February 2010. The penalty and notes 1 and 2 formerly read:

Penalty: Imprisonment for 10 years.

Note 1:

For defences, see sections 70.3 and 70.4.

Note 2:

Section 4B of the Crimes Act 1914 allows a court to impose a fine instead of imprisonment or in addition to imprisonment.

(1A)
For the purposes of paragraph (1)(c):

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

(b) business, or a business advantage, does not need to be actually obtained or retained.
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S 70.2(1A) substituted by No 153 of 2015, s 3 and Sch 2 item 1, effective 27 November 2015. S 70.2(1A) formerly read:

(1A)
In a prosecution for an offence under subsection (1), it is not necessary to prove that business, or a business advantage, was actually obtained or retained.

S 70.2(1A) inserted by No 147 of 2007, s 3 and Sch 2 item 1, effective 25 September 2007.

Benefit that is not legitimately due

(2)
For the purposes of this section, in working out if a benefit is not legitimately due to a person in a particular situation, disregard the following:

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

(b) the value of the benefit;

(c) any official tolerance of the benefit.
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History

S 70.2(2) amended by No 147 of 2007, s 3 and Sch 2 item 2, by substituting para (a), effective 25 September 2007. Para (a) formerly read:

(a) the fact that the benefit may be customary, or perceived to be customary, in the situation;

Business advantage that is not legitimately due

(3)
For the purposes of this section, in working out if a business advantage is not legitimately due to a person in a particular situation, disregard the following:

(a) the fact that the business advantage may be customary, or perceived to be customary, in the situation;

(b) the value of the business advantage;

(c) any official tolerance of the business advantage.

Penalty for individual

(4)
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.
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History

S 70.2(4) inserted by No 4 of 2010, s 3 and Sch 8 item 3, effective 20 February 2010.

Penalty for body corporate

(5)
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 conduct constituting the offence occurred.
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History

S 70.2(5) inserted by No 4 of 2010, s 3 and Sch 8 item 3, effective 20 February 2010.

(6)
For the purposes of this section, the annual turnover of a body corporate, during the turnover period, is the sum of the values of all the supplies that the body corporate, and any body corporate related to the body corporate, have made, or are likely to make, during that period, other than the following supplies:

(a) supplies made from any of those bodies corporate to any other of those bodies corporate;

(b) supplies that are input taxed;

(c) supplies that are not for consideration (and are not taxable supplies under section 72-5 of the A New Tax System (Goods and Services Tax) Act 1999 );

(d) supplies that are not made in connection with an enterprise that the body corporate carries on.
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History

S 70.2(6) inserted by No 4 of 2010, s 3 and Sch 8 item 3, effective 20 February 2010.

(7)
Expressions used in subsection (6) that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in that subsection as they have in that Act.
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S 70.2(7) inserted by No 4 of 2010, s 3 and Sch 8 item 3, effective 20 February 2010.

(8)
The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this section in the same way as for the purposes of the Corporations Act 2001 .
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History

S 70.2(8) inserted by No 4 of 2010, s 3 and Sch 8 item 3, effective 20 February 2010.

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