105C Bribery of foreign public official

(1)

In this section and in sections 105D and 105E,—

benefit means any money, valuable consideration, office, or employment, or any benefit, whether direct or indirect

business includes the provision of international aid

employee, in relation to a body corporate or corporation sole, means an individual who is an employee, agent, director, or officer of that body corporate or corporation sole

foreign country includes—

(a)

a territory for whose international relations the Government of a foreign country is responsible; and

(b)

an organised foreign area or entity including an autonomous territory or a separate Customs territory

foreign government includes all levels and subdivisions of government, such as local, regional, and national government

foreign public agency means any person or body, wherever situated, that carries out a public function under the laws of a foreign country

foreign public enterprise means—

(a)

a company, wherever incorporated, that—

(i)

a foreign government is able to control or dominate (whether by reason of its ownership of shares in the company, its voting powers in the company, or its ability to appoint 1 or more directors (however described), or by reason that the directors (however described) are accustomed or under an obligation to act in accordance with the directions of that government, or otherwise); and

(ii)

enjoys subsidies or other privileges that are enjoyed only by companies, persons, or bodies to which subparagraph (i) or paragraph (b)(i) apply; or

(b)

a person or body (other than a company), wherever situated, that—

(i)

a foreign government is able to control or dominate (whether by reason of its ability to appoint the person or 1 or more members of the body, or by reason that the person or members of the body are accustomed or under an obligation to act in accordance with the directions of that government, or otherwise); and

(ii)

enjoys subsidies or other privileges that are enjoyed only by companies, persons, or bodies to which subparagraph (i) or paragraph (a)(i) apply

foreign public official includes any of the following:

(a)

a member or officer of the executive, judiciary, or legislature of a foreign country:

(b)

a person who is employed by a foreign government, foreign public agency, foreign public enterprise, or public international organisation:

(c)

a person, while acting in the service of or purporting to act in the service of a foreign government, foreign public agency, foreign public enterprise, or public international organisation

public international organisation means any of the following organisations, wherever situated:

(a)

an organisation of which 2 or more countries or 2 or more governments are members, or represented on the organisation:

(b)

an organisation constituted by an organisation to which paragraph (a) applies or by persons representing 2 or more such organisations:

(c)

an organisation constituted by persons representing 2 or more countries or 2 or more governments:

(d)

an organisation that is part of an organisation referred to in any of paragraphs (a) to (c)

routine government action, in relation to the performance of any action by a foreign public official, does not include—

(a)

any decision about—

(i)

whether to award new business; or

(ii)

whether to continue existing business with any particular person or body; or

(iii)

the terms of new business or existing business; or

(b)

any action that is outside the scope of the ordinary duties of that official; or

(c)

any action that provides—

(i)

an undue material benefit to a person who makes a payment; or

(ii)

an undue material disadvantage to any other person.

(2)

Every person commits an offence who corruptly gives or offers or agrees to give a bribe to a person with intent to influence a foreign public official in respect of any act or omission by that official in his or her official capacity (whether or not the act or omission is within the scope of the official’s authority) in order to—

(a)

obtain or retain business; or

(b)

obtain any improper advantage in the conduct of business.

(2A)

A body corporate or corporation sole commits an offence against subsection (2) if—

(a)

an employee of the body corporate or corporation sole does an act that would constitute an offence under subsection (2); and

(b)

the employee does the act, in whole or in part, with the intent to benefit the body corporate or corporation sole; and

(c)

the employee, in doing the act, is acting within the scope of their authority as an employee of the body corporate or corporation sole.

(2B)

A body corporate or corporation sole does not commit an offence under subsection (2) if it has taken reasonable steps to prevent the offence.

(2C)

If a body corporate or corporation sole is charged with an offence under subsection (2), it is to be presumed, unless the body corporate or corporation sole puts the matter at issue, that it did not take reasonable steps.

(2D)

Every person who commits an offence against this section is liable to imprisonment for a term not exceeding 7 years, or a fine, or both.

(2E)

A fine imposed under subsection (2D) cannot exceed the greater of—

(a)

$5 million; or

(b)

if a court is satisfied that an offence occurred in the course of producing a commercial gain, and if the value of that commercial gain can be readily ascertained, 3 times the value of that commercial gain.

(3)

This section does not apply if—

(a)

the act that is alleged to constitute the offence was committed for the sole or primary purpose of ensuring or expediting the performance by a foreign public official of a routine government action; and

(b)

the value of the benefit is small.

(4)

Subsections (2A), (2B), and (2C)—

(a)

apply only in respect of offences under subsection (2) and section 105D; and

(b)

do not preclude the liability of a body corporate or corporation sole under any other provision of this Act.

Section 105C: inserted, on 3 May 2001, by section 8 of the Crimes (Bribery of Foreign Public Officials) Amendment Act 2001 (2001 No 28).

Section 105C(1) business: inserted, on 7 November 2015, by section 6(1) of the Crimes Amendment Act 2015 (2015 No 95).

Section 105C(1) employee: inserted, on 7 November 2015, by section 6(1) of the Crimes Amendment Act 2015 (2015 No 95).

Section 105C(1) routine government action paragraph (b): amended, on 7 November 2015, by section 6(2) of the Crimes Amendment Act 2015 (2015 No 95).

Section 105C(1) routine government action paragraph (c): inserted, on 7 November 2015, by section 6(3) of the Crimes Amendment Act 2015 (2015 No 95).

Section 105C(2): amended, on 7 November 2015, by section 6(4) of the Crimes Amendment Act 2015 (2015 No 95).

Section 105C(2A): inserted, on 7 November 2015, by section 6(5) of the Crimes Amendment Act 2015 (2015 No 95).

Section 105C(2B): inserted, on 7 November 2015, by section 6(5) of the Crimes Amendment Act 2015 (2015 No 95).

Section 105C(2C): inserted, on 7 November 2015, by section 6(5) of the Crimes Amendment Act 2015 (2015 No 95).

Section 105C(2D): inserted, on 7 November 2015, by section 6(5) of the Crimes Amendment Act 2015 (2015 No 95).

Section 105C(2E): inserted, on 7 November 2015, by section 6(5) of the Crimes Amendment Act 2015 (2015 No 95).

Section 105C(4): replaced, on 7 November 2015, by section 6(6) of the Crimes Amendment Act 2015 (2015 No 95).