Section 70.2 Criminal Code Act | Bribing a Foreign Public Official


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The Legislation

Section 70.2 of the Criminal Code Act 1995 (Cth) is Bribing a Foreign Public Official and is extracted below.

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70.2  Bribing a foreign public official

(1)  A person is guilty of 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.

(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.

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.

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.

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.

(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.

(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.

(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.