control, in relation to a company, body or association, includes control as a result of, or by means of, trusts, agreements, arrangements, understandings and practices, whether or not having legal or equitable force and whether or not based on legal or equitable rights.
duty, in relation to a foreign public official, means any authority, duty, function or power that:
(a) is conferred on the official; or
(b) that the official holds himself or herself out as having.
foreign government body means:
(a) the government of a foreign country or of part of a foreign country; or
(b) an authority of the government of a foreign country; or
(c) an authority of the government of part of a foreign country; or
(d) a foreign local government body or foreign regional government body; or
(e) a foreign public enterprise.
foreign public enterprise means a company or any other body or association where:
(a) in the case of a company—one of the following applies:
(i) the government of a foreign country or of part of a foreign country holds more than 50% of the issued share capital of the company;
(ii) the government of a foreign country or of part of a foreign country holds more than 50% of the voting power in the company;
(iii) the government of a foreign country or of part of a foreign country is in a position to appoint more than 50% of the company’s board of directors;
(iv) the directors (however described) of the company are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country;
(v) the government of a foreign country or of part of a foreign country is in a position to exercise control over the company; and
(b) in the case of any other body or association—either of the following applies:
(i) the members of the executive committee (however described) of the body or association are accustomed or under an obligation (whether formal or informal) to act in accordance with the directions, instructions or wishes of the government of a foreign country or of part of a foreign country;
(ii) the government of a foreign country or of part of a foreign country is in a position to exercise control over the body or association; and
(c) the company, body or association:
(i) enjoys special legal rights or a special legal status under a law of a foreign country or of part of a foreign country; or
(ii) enjoys special benefits or privileges under a law of a foreign country or of part of a foreign country;
because of the relationship of the company, body or association with the government of the foreign country or of the part of the foreign country, as the case may be.
foreign public official means:
(a) an employee or official of a foreign government body; or
(b) an individual who performs work for a foreign government body under a contract; or
(c) an individual who holds or performs the duties of an appointment, office or position under a law of a foreign country or of part of a foreign country; or
(d) an individual who holds or performs the duties of an appointment, office or position created by custom or convention of a foreign country or of part of a foreign country; or
(e) an individual who is otherwise in the service of a foreign government body (including service as a member of a military force or police force); or
(f) a member of the executive, judiciary or magistracy of a foreign country or of part of a foreign country; or
(g) an employee of a public international organisation; or
(h) an individual who performs work for a public international organisation under a contract; or
(i) an individual who holds or performs the duties of an office or position in a public international organisation; or
(j) an individual who is otherwise in the service of a public international organisation; or
(k) a member or officer of the legislature of a foreign country or of part of a foreign country; or
(l) an individual who:
(i) is an authorised intermediary of a foreign public official covered by any of the above paragraphs; or
(ii) holds himself or herself out to be the authorised intermediary of a foreign public official covered by any of the above paragraphs; or
(m) an individual standing, or nominated, (whether formally or informally) as a candidate to be a foreign public official covered by any of paragraphs (a) to (k) of this definition.
public international organisation means:
(a) an organisation:
(i) of which 2 or more countries, or the governments of 2 or more countries, are members; or
(ii) that is constituted by persons representing 2 or more countries, or representing the governments of 2 or more countries; or
(b) an organisation established by, or a group of organisations constituted by:
(i) organisations of which 2 or more countries, or the governments of 2 or more countries, are members; or
(ii) organisations that are constituted by the representatives of 2 or more countries, or the governments of 2 or more countries; or
(c) an organisation that is:
(i) an organ of, or office within, an organisation described in paragraph (a) or (b); or
(ii) a commission, council or other body established by an organisation so described or such an organ; or
(iii) a committee, or subcommittee of a committee, of an organisation described in paragraph (a) or (b), or of such an organ, council or body.
share includes stock.
Subdivision B—Bribery of foreign public officials
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.
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.
70.3 Defence—conduct lawful in foreign public official’s country
(1) A person does not commit an offence against section 70.2 in the cases set out in the following table:
Defence of lawful conduct
Item In a case where the person’s conduct occurred in relation to this kind of foreign public official... and if it were assumed that the person’s conduct had occurred wholly... this written law requires or permits the provision of the benefit ...
1 an employee or official of a foreign government body in the place where the central administration of the body is located a written law in force in that place
2 an individual who performs work for a foreign government body under a contract in the place where the central administration of the body is located a written law in force in that place
3 an individual who holds or performs the duties of an appointment, office or position under a law of a foreign country or of part of a foreign country in the foreign country or in the part of the foreign country, as the case may be a written law in force in the foreign country or in the part of the foreign country, as the case may be
4 an individual who holds or performs the duties of an appointment, office or position created by custom or convention of a foreign country or of part of a foreign country in the foreign country or in the part of the foreign country, as the case may be a written law in force in the foreign country or in the part of the foreign country, as the case may be
5 an individual who is otherwise in the service of a foreign government body (including service as a member of a military force or police force) in the place where the central administration of the body is located a written law in force in that place
6 a member of the executive, judiciary or magistracy of a foreign country or of part of a foreign country in the foreign country or in the part of the foreign country, as the case may be a written law in force in the foreign country or in the part of the foreign country, as the case may be
7 an employee of a public international organisation in the place where the headquarters of the organisation is located a written law in force in that place
8 an individual who performs work for a public international organisation under a contract in the place where the headquarters of the organisation is located a written law in force in that place
9 an individual who holds or performs the duties of a public office or position in a public international organisation in the place where the headquarters of the organisation is located a written law in force in that place
10 an individual who is otherwise in the service of a public international organisation in the place where the headquarters of the organisation is located a written law in force in that place
11 a member or officer of the legislature of a foreign country or of part of a foreign country in the foreign country or in the part of the foreign country, as the case may be a written law in force in the foreign country or in the part of the foreign country, as the case may be
Note: A defendant bears an evidential burden in relation to the matter in subsection (1). See subsection 13.3(3).
(2) A person does not commit an offence against section 70.2 if:
(a) the person’s conduct occurred in relation to a foreign public official covered by paragraph (l) of the definition of foreign public official in section 70.1 (which deals with intermediaries of foreign public officials covered by other paragraphs of that definition); and
(b) assuming that the first‑mentioned person’s conduct had occurred instead in relation to:
(i) the other foreign public official of whom the first‑mentioned foreign public official was an authorised intermediary; or
(ii) the other foreign public official in relation to whom the first‑mentioned foreign public official held himself or herself out to be an authorised intermediary;
subsection (1) would have applied in relation to the first‑mentioned person.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2). See subsection 13.3(3).
(2A) A person does not commit an offence against section 70.2 if:
(a) the person’s conduct occurred in relation to a foreign public official (the relevant foreign public official); and
(b) the relevant foreign public official is covered by paragraph (m) of the definition of foreign public official in section 70.1 because the relevant foreign public official is a candidate to be a particular foreign public official (the substantive foreign public official); and
(c) assuming that the first‑mentioned person’s conduct had occurred wholly in the place, the foreign country or the part of the foreign country, as the case may be, (the relevant place) referred to in the item of the table in subsection (1) that would be applicable if the first‑mentioned person’s conduct had occurred in relation to the substantive foreign public official, a written law in force in the relevant place permits the provision of the benefit to the relevant foreign public official.
Note: A defendant bears an evidential burden in relation to the matter in subsection (2A). See subsection 13.3(3).
(3) To avoid doubt, if:
(a) a person’s conduct occurred in relation to a foreign public official covered by 2 or more paragraphs of the definition of foreign public official in section 70.1; and
(b) at least one of the corresponding items in subsection (1) is applicable to the conduct of the first‑mentioned person;
subsection (1) applies to the conduct of the first‑mentioned person.
70.4 Defence—facilitation payments
(1) A person does not commit an offence against section 70.2 if:
(a) the value of the benefit was of a minor nature; and
(b) the person’s conduct was engaged in for the sole or dominant purpose of expediting or securing the performance of a routine government action of a minor nature; and
(c) as soon as practicable after the conduct occurred, the person made a record of the conduct that complies with subsection (3); and
(d) any of the following subparagraphs applies:
(i) the person has retained that record at all relevant times;
(ii) that record has been lost or destroyed because of the actions of another person over whom the first‑mentioned person had no control, or because of a non‑human act or event over which the first‑mentioned person had no control, and the first‑mentioned person could not reasonably be expected to have guarded against the bringing about of that loss or that destruction;
(iii) a prosecution for the offence is instituted more than 7 years after the conduct occurred.
Note: A defendant bears an evidential burden in relation to the matter in subsection (1). See subsection 13.3(3).
Routine government action
(2) For the purposes of this section, a routine government action is an action of a foreign public official that:
(a) is ordinarily and commonly performed by the official; and
(b) is covered by any of the following subparagraphs: