Criminal Code Act. Australia
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.
70.3 Defence — conduct lawful in foreign public official’s country
(1) A person is not guilty of 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
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… 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 is not guilty of 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).
(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