(i) granting a permit, licence or other official document that qualifies a person to do business in a foreign country or in a part of a foreign country;
(ii) processing government papers such as a visa or work permit;
(iii) providing police protection or mail collection or delivery;
(iv) scheduling inspections associated with contract performance or related to the transit of goods;
(v) providing telecommunications services, power or water;
(vi) loading and unloading cargo;
(vii) protecting perishable products, or commodities, from deterioration;
(viii) any other action of a similar nature; and
(c) does not involve a decision about:
(i) whether to award new business; or
(ii) whether to continue existing business with a particular person; or
(iii) the terms of new business or existing business; and
(d) does not involve encouraging a decision about:
(i) whether to award new business; or
(ii) whether to continue existing business with a particular person; or
(iii) the terms of new business or existing business.
Content of records
(3) A record of particular conduct engaged in by a person complies with this subsection if the record sets out:
(a) the value of the benefit concerned; and
(b) the date on which the conduct occurred; and
(c) the identity of the foreign public official in relation to whom the conduct occurred; and
(d) if that foreign public official is not the other person mentioned in paragraph 70.2(1)(a)—the identity of that other person; and
(e) particulars of the routine government action that was sought to be expedited or secured by the conduct; and
(f) the person’s signature or some other means of verifying the person’s identity.
70.5 Territorial and nationality requirements
(1) A person does not commit an offence against section 70.2 unless:
(a) the conduct constituting the alleged offence occurs:
(i) wholly or partly in Australia; or
(ii) wholly or partly on board an Australian aircraft or an Australian ship; or
(b) the conduct constituting the alleged offence occurs wholly outside Australia and:
(i) at the time of the alleged offence, the person is an Australian citizen; or
(ii) at the time of the alleged offence, the person is a resident of Australia; or
(iii) at the time of the alleged offence, the person is a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.
Note: The expression offence against section 70.2 is given an extended meaning by subsections 11.2(1), 11.2A(1) and 11.6(2).
(2) Proceedings for an offence against section 70.2 must not be commenced without the Attorney‑General’s written consent if:
(a) the conduct constituting the alleged offence occurs wholly outside Australia; and
(b) at the time of the alleged offence, the person alleged to have committed the offence is:
(i) a resident of Australia; and
(ii) not an Australian citizen.
(3) However, a person may be arrested for, charged with, or remanded in custody or released on bail in connection with an offence against section 70.2 before the necessary consent has been given.
Subdivision C—Failure to prevent bribery of foreign public officials
70.5A Failing to prevent bribery of a foreign public official
Offence
(1) A person (the first person) commits an offence if:
(a) the first person is a body corporate:
(i) that is a constitutional corporation; or
(ii) that is incorporated in a Territory; or
(iii) that is taken to be registered in a Territory under section 119A of the Corporations Act 2001; and
(b) an associate of the first person:
(i) commits an offence against section 70.2; or
(ii) engages in conduct outside Australia that, if engaged in in Australia, would constitute an offence (the notional offence) against section 70.2; and
(c) the associate does so for the profit or gain of the first person.
(2) Absolute liability applies to:
(a) paragraphs (1)(a) and (c); and
(b) the circumstance in subparagraph (1)(b)(i) that the associate commits an offence against section 70.2; and
(c) the circumstance in subparagraph (1)(b)(ii) that the associate engages in conduct outside Australia that, if engaged in in Australia, would constitute the notional offence.
(3) To avoid doubt, the first person may be convicted of an offence against subsection (1) because of the commission by the associate of an offence against section 70.2 even if the associate has not been convicted of that offence.
(4) Section 12.6 applies in relation to an offence against subsection (1) of this section as if the reference in section 12.6 to an employee, agent or officer of a body corporate included any associate of the body corporate.
Exception
(5) Subsection (1) does not apply if the first person proves that the first person had in place adequate procedures designed to prevent:
(a) the commission of an offence against section 70.2 by any associate of the first person; and
(b) any associate of the first person engaging in conduct outside Australia that, if engaged in in Australia, would constitute an offence against section 70.2.
Note: A defendant bears a legal burden in relation to the matter in subsection (5): see section 13.4.
Penalty
(6) An offence against subsection (1) 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 associate obtained directly or indirectly and that is reasonably attributable to the conduct constituting the offence, or that would have constituted the notional offence, against section 70.2—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 first person during the period (the turnover period) of 12 months ending at the end of the month in which the associate committed, or began committing, the offence or notional offence against section 70.2.
Geographical jurisdiction
(7) Section 15.1 (extended geographical jurisdiction—category A) applies to an offence against subsection (1).
Indictable offence
(8) An offence against subsection (1) is an indictable offence.
70.5B Guidance on preventing bribery of foreign public officials
(1) The Minister must publish guidance on the steps that a body corporate can take to prevent an associate from bribing foreign public officials.
(2) Guidance under subsection (1) is not a legislative instrument.
Subdivision D—Miscellaneous
70.5C Meaning of annual turnover
(1) For the purposes of this Division, 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.
(2) Expressions used in this section that are also used in the A New Tax System (Goods and Services Tax) Act 1999 have the same meaning in this section as they have in that Act.
70.5D Related bodies corporate
The question whether 2 bodies corporate are related to each other is to be determined for the purposes of this Division in the same way as for the purposes of the Corporations Act 2001.
70.6 Saving of other laws
This Division is not intended to exclude or limit the operation of any other law of the Commonwealth or any law of a State or Territory.
Division 71—Offences against United Nations and associated personnel
71.1 Purpose
The purpose of this Division is to protect United Nations and associated personnel and give effect to the Convention on the Safety of United Nations and Associated Personnel.
71.2 Murder of a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes the death of another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person intends to cause, or is reckless as to causing, the death of the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for life.
Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.3 Manslaughter of a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes the death of another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person intends to cause, or is reckless as to causing, serious harm to the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for 25 years.
Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.4 Intentionally causing serious harm to a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes serious harm to another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person intends to cause serious harm to the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for 20 years.
Penalty (aggravated offence): Imprisonment for 25 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.5 Recklessly causing serious harm to a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes serious harm to another person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person is reckless as to causing serious harm to the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for 15 years.
Penalty (aggravated offence): Imprisonment for 19 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.6 Intentionally causing harm to a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes harm to another person without the consent of that person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person intends to cause harm to the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for 10 years.
Penalty (aggravated offence): Imprisonment for 13 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.7 Recklessly causing harm to a UN or associated person
(1) A person commits an offence if:
(a) the person’s conduct causes harm to another person without the consent of that person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person is reckless as to causing harm to the UN or associated person or any other person by the conduct.
Penalty: Imprisonment for 7 years.
Penalty (aggravated offence): Imprisonment for 9 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.8 Unlawful sexual penetration
(1) A person commits an offence if:
(a) the person sexually penetrates another person without the consent of that person; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person knows about, or is reckless as to, the lack of consent.
Penalty: Imprisonment for 15 years.
Penalty (aggravated offence): Imprisonment for 20 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(3) In this section:
sexually penetrate means:
(a) penetrate (to any extent) the genitalia or anus of a person by any part of the body of another person or by any object manipulated by that other person; or
(b) penetrate (to any extent) the mouth of a person by the penis of another person; or
(c) continue to sexually penetrate as defined in paragraph (a) or (b).
(4) In this section, being reckless as to a lack of consent to sexual penetration includes not giving any thought to whether or not the person is consenting to sexual penetration.
(5) In this section, the genitalia or others parts of the body of a person include surgically constructed genitalia or other parts of the body of the person.
71.9 Kidnapping a UN or associated person
(1) A person commits an offence if:
(a) the person takes or detains another person without his or her consent; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(d) the first‑mentioned person takes or detains the UN or associated person with the intention of:
(i) holding him or her to ransom or as a hostage; or
(ii) taking or sending him or her out of the country; or
(iii) committing a serious offence against him or her or another person.
Penalty: Imprisonment for 15 years.
Penalty (aggravated offence): Imprisonment for 19 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
(3) In this section, serious offence means an offence under a law of the Commonwealth, a State or Territory or a foreign law the maximum penalty for which is death, or imprisonment for not less than 12 months.
71.10 Unlawful detention of UN or associated person
(1) A person commits an offence if:
(a) the person takes or detains another person without that other person’s consent; and
(b) that other person is a UN or associated person; and
(c) the UN or associated person is engaged in a UN operation that is not a UN enforcement action.
Penalty: Imprisonment for 5 years.
Penalty (aggravated offence): Imprisonment for 6 years.
Note 1: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
Note 2: Section 71.13 defines aggravated offence.
(2) Strict liability applies to paragraphs (1)(b) and (c).
71.11 Intentionally causing damage to UN or associated person’s property etc.
(1) A person commits an offence if:
(a) the person’s conduct causes damage to official premises, private accommodation or a means of transportation (the property); and
(b) the property is occupied or used by a UN or associated person; and
(c) the conduct gives rise to a danger of serious harm to a person; and
(d) that person is the UN or associated person referred to in paragraph (b); and
(e) the UN or associated person is engaged in a UN operation that is not a UN enforcement action; and
(f) the first‑mentioned person intends to cause the damage to the property; and
(g) the first‑mentioned person is reckless as to the danger to the person referred to in paragraph (c).
Penalty: Imprisonment for 10 years.
Note: Section 71.23 defines UN enforcement action, UN operation and UN or associated person.
(2) Strict liability applies to paragraphs (1)(b), (d) and (e).
71.12 Threatening to commit other offences
A person commits an offence if the person:
(a) threatens to commit an offence (the threatened offence) under any of sections 71.2 to 71.11; and
(b) intends to compel any other person to do or omit to do an act by making the threat.
Penalty:
(a) if the threatened offence is the offence under section 71.2 (murder of a UN or associated person)—imprisonment for 10 years; or
(b) if the threatened offence is the offence under section 71.3, 71.4, 71.5, 71.8 or 71.9 (manslaughter of, causing serious harm to, kidnapping, or sexually penetrating, a UN or associated person)—imprisonment for 7 years; or
(c) if the threatened offence is the offence under section 71.6 or 71.11 (causing harm to, or damaging the property etc. of, a UN or associated person)—imprisonment for 5 years; or
(d) if the threatened offence is the offence under section 71.7 or 71.10 (recklessly causing harm to, or unlawful detention of, a UN or associated person)—imprisonment for 3 years.
Note: Section 71.23 defines UN or associated person.
71.13 Aggravated offences
(1) For the purposes of this Division, an offence against section 71.4, 71.5, 71.6, 71.7, 71.8, 71.9 or 71.10 is an aggravated offence if:
(a) the offence was committed during the deliberate and systematic infliction of severe pain over a period of time; or