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Bribing a Foreign Public Official

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:

  1. 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
  2. The benefit was not legitimately due to the other person, and
  3. 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:

  1. an employee or official of a foreign government body
  2. A person who performs contractual work for a foreign government body
  3. A person who holds or performs duties of an appointment, office or position under a law of a foreign country or part thereof
  4. 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
  5. A person who otherwise serves a foreign government body
  6. A member of the executive, judiciary or magistracy of a foreign country
  7. An employee of a public international organisation
  8. A person who performs contractual work for a public international organisation
  9. A person who holds or performs the duties of an office or position in a public international organisation
  10. A person who otherwise serves a public international organisation
  11. A member or officer of the legislature of a foreign country, or
  12. 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:

  1. It was your intention to influence a particular foreign public official, or
  2. An advantage was actually obtained or retained.

The following matters are irrelevant to any determination of whether a benefit or advantage was legitimately due:

  1. That the benefit was customary, or perceived as customary, to the particular situation
  2. That the benefit was minor, and
  3. That there was official tolerance of the benefit.

You are not guilty of the offence if:

  1. You held a position with a foreign government, agency or body
  2. Your conduct occurred in that foreign country, and
  3. Your conduct was lawful in that country.

You are also not guilty if:

  1. The value of the benefit was minor
  2. Your conduct was for the sole purpose of expediting or securing the performance of a routine government action of a minor nature
  3. You made a record of your conduct as soon as practicable after it occurred, and
  4. 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.

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