Bribing a foreign public official is an offence under section 70.2 of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 10 years in prison.
To establish the offence, the prosecution must prove beyond reasonable doubt that:
- You provided a benefit to another person, or you caused a benefit to be provided to another person, or you offered or promised to provide a benefit to another person, or you caused an offer or promise of a benefit to be provided to another person
- The benefit was not legitimately due to the other person, and
- You did so intending to influence a foreign public official in the exercise of his or her duties as a foreign public official, in order to:
- Obtain or retain business, or
- Obtain or retain a business advantage that is not legitimately due
A ‘foreign public official’ is defined as:
- an employee or official of a foreign government body
- A person who performs contractual work for a foreign government body
- A person who holds or performs duties of an appointment, office or position under a law of a foreign country or part thereof
- A person who holds or performs the duties of an appointment, office or position created by custom or convention of a foreign country or part thereof
- A person who otherwise serves a foreign government body
- A member of the executive, judiciary or magistracy of a foreign country
- An employee of a public international organisation
- A person who performs contractual work for a public international organisation
- A person who holds or performs the duties of an office or position in a public international organisation
- A person who otherwise serves a public international organisation
- A member or officer of the legislature of a foreign country, or
- A person who:
- Is an authorised intermediary of a foreign public official, or
- Holds himself or herself out to be the authorised intermediary of a foreign public official
The prosecution does not need to prove that:
- It was your intention to influence a particular foreign public official, or
- An advantage was actually obtained or retained.
The following matters are irrelevant to any determination of whether a benefit or advantage was legitimately due:
- That the benefit was customary, or perceived as customary, to the particular situation
- That the benefit was minor, and
- That there was official tolerance of the benefit.
You are not guilty of the offence if:
- You held a position with a foreign government, agency or body
- Your conduct occurred in that foreign country, and
- Your conduct was lawful in that country.
You are also not guilty if:
- The value of the benefit was minor
- Your conduct was for the sole purpose of expediting or securing the performance of a routine government action of a minor nature
- You made a record of your conduct as soon as practicable after it occurred, and
- You retained a copy of that record, or the record was destroyed through actions that were out of your control, or the prosecution was instituted more than 7 years after the conduct occurred.
Duress is also a defence to the charge.
If you are going to court for Bribing a Foreign Public Official, call Sydney Criminal Lawyers 24/7 on (02) 9261 8881 to arrange a free first conference with an experienced defence lawyer who will advise you of your options and the best way forward, and fight to secure the optimal outcome.
Read on for more information.
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.
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Our entire firm is exclusively dedicated to criminal law – which makes us true specialists.
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