Draft Bribery Bill - Joint Committee on the Draft Bribery Bill

Draft Bribery Bill - Joint Committee on the Draft Bribery Bill Contents

APPENDIX B

COMPARATIVE LAW

This Appendix sets out some overseas approaches to the bribery of public officials, foreign and domestic, and private individuals. The Appendix should be read in conjunction with Professor Stuart Green's paper on the approach in the United States of America.

1. FRANCE

2. Public officials

1. The Criminal Code provides two offences that make it an offence to bribe a public official.

2. Article 432-11 of the Criminal Code makes it an offence for a public official[10] to directly or indirectly request or accept promises, donations, gifts or advantages, without the right to do so. In addition to this there must be an intention on the part of the public official to carry out or abstain from carrying out an act relating to his or her office or an intention to obtain "any distinction, employment, contract or any other favourable decision".

3. The corresponding offence is contained in Article 433-1 of the Criminal Code. This Article makes it an offence for a person to, directly or indirectly, offer or promise donations, gifts or advantages to a public official without the right to do so. In addition to this there must be an intention on the part of the person that the official carry out or abstain from carrying out an act relating to his or her office or an intention that the official obtains "any distinction, employment, contract or any other favourable decision".

4. The maximum penalty for these offences for natural persons is 10 years' imprisonment and/or a fine of 150 thousand Euros. The maximum penalty for legal persons is up to five times the maximum fine for natural persons. Further under Article 433-25 of the Criminal Code, a legal person can be subject to any of the following for a period of up to five years:

(a) a ban on performing the activity in connection with which the offence was committed, either directly or indirectly;

(b) judicial supervision;

(d) exclusion from public procurements;

(e) a ban on appealing for public funds;

(f) a ban on issuing cheques;

(g) a ban on the use of payment cards;

(h) confiscation; or

(i) display of the court's ruling.

5 Both natural and legal persons may also be subject to the confiscation of the "instrument that was used or intended to be used to commit the offence, or of the proceeds of the offence".[11]

3. Foreign public officials

6. Articles 435-1 and 435-2 of the Criminal Code provide offences of bribing foreign public officials. Article 435-1 prohibits a foreign public official[12] from directly or indirectly requesting or accepting offers or promises of gifts to carry out, or abstain from carrying out, an act of his or her duty, mission or mandate or facilitated by his or her duty without the right to do so.

7. Article 435-2 carries the corresponding offence. The Article makes it an offence for a person to propose, without right, gifts, presents or advantages of any kind to a foreign public official. In addition the person must intend that the foreign public official will carry out, or abstain from carrying out, an act of his or her duty, mission or mandate or facilitated by his or her duty.

4. Private persons

8. Article 445-2 of the Criminal Code provides an offence of private corruption. The Article applies to a person:

(j) not vested with public authority or discharging a public service mission; and

(k) who is performing in the course of professional or social duties, a function of management or performing work for an individual or corporate entity or any organism.

9. Such a person is guilty of an offence if, without any right to do so to, he or she directly or indirectly, requests, accepts or promises, donations, gifts or any advantages, to carry out or abstain from carrying out an act relating to his or her duties. In addition this act or omission must infringe his or her legal, contractual or professional obligations. Article 445-1 also makes it an offence for a person to propose a bribery agreement or consent to the bribery.

10. The maximum penalty for these offences for natural persons is five years' imprisonment and a fine of up to 75,000. For legal persons the maximum penalty is a fine of up to five times the amount for individuals and/or one of the measures set out in paragraph B.5 above. Both natural and legal persons can also be subjected to confiscation of property.

5. Jurisdiction

11. The above laws apply to French nationals who commit bribery offences overseas, if the country within which the offence was committed also criminalises bribery.[13] However, such proceedings can only be instituted by the Public Prosecutors Office and must be preceded by a complaint by the victim of the offence or a legal successor or be preceded by an accusation made formally by the overseas authority.

12. The above laws also apply to a French national or foreign citizen who commits an offence of bribery abroad against a French victim.[14]

6. GERMANY

7. Public officials

13. There are two types of corruption offence concerning public officials, namely: accepting and granting a benefit; and accepting and granting a bribe.

8. Benefits

14. Section 331(1) of the Criminal Code contains the offence of accepting a benefit. The section provides that it is an offence for a public official[15] to demand, allow himself or herself to be promised or accept a benefit for himself or herself or another for the discharge of a duty.[16] Section 331(3) provides a defence if R allows himself or herself to be promised or accepts a benefit, which he or she did not demand, and the public authority authorises the acceptance.

15. Section 333(1) of the Criminal Code contains the offence of granting a benefit. The section provides that it is an offence for a person to offer, promise or grant a benefit to a public official,[17] for him or her or another, for the discharge of a duty.[18] Section 333(3) provides a defence if the public authority authorises the public official's acceptance of the benefit.

9. Bribes

16. Section 332(1) of the Criminal Code contains the offence of a public official accepting a bribe. The section provides that it is an offence for a public official[19] to demand, allow himself or herself to be promised or accept a bribe, for himself or herself or another, in return for him or her performing an official act that would violate his or her official duties.[20] An attempt to commit this offence is also punishable under this section. Section 332(3) also provides that a public official will be guilty of an offence under subsection (1) if he or she accepts a bribe for a future act if he or she has either:

(l) shown a willingness to violate his or her duties by the act; or

(m) shown a willingness to be influenced by the bribe in the exercise of his or her discretion.

17. Section 334(1) of the Criminal Code contains the offence of granting a bribe to a public official. The section provides it is an offence for a person to promise or grant a bribe to a public official,[21] for himself or herself or another, in return for the official performing an official act that would violate his or her official duties.[22] Section 334(3) provides that P will guilty of an offence under subsection (1) if he or she promises a bribe for a future act if he or she attempts to induce the official to:

(n) violate his or her duties by the act; or

(o) be influenced by the bribe in the exercise of his or her discretion.

10. Penalties

18. The maximum penalty for these offences is imprisonment for not more than 10 years. The court can also issue a forfeiture order.

11. Jurisdiction

19. The provisions on public bribery apply to activities outside Germany if a German national commits them or they involve a public official who is employed by Germany or the EU. The German criminal law generally also applies to offences committed overseas if they are committed by a German national; or are committed jointly by co-defendants acting in Germany; or the effects of the offence are to the detriment of a German national (legal or natural persons).

12. Foreign public officials

20. Germany implemented the Act on Combating Bribery of Foreign Public Officials in International Business Transactions 1998 to implement the OECD convention of the same name. Section 1 of the Act extends the reach of Section 334 of the Criminal Code to foreign public officials.[23]

21. Section 2 of the Act also makes it an offence to bribe a foreign Member of Parliament. The section prohibits anyone offering, promising or granting a Member of a foreign Parliament an advantage.[24] The advantage must be for that Member or for a third party in order to obtain or retain for him or herself or a third party business or an unfair advantage in international business transactions. Further the business or unfair advantage in international business must be in return for the Members committing an act or omission in the future in connection with his or her mandate or functions. The maximum penalty for this offence is five years' imprisonment or a fine.

13. Jurisdiction

22. Section 3 of the Act provides the above sections apply to offences committed abroad by a German national.

14. Private persons

23. In Germany the focus of the criminal law on private bribery is the protection of free competition. Bribery in business transactions is set out in section 299 of the Criminal Code. Section 299 applies to both acts committed in the domestic markets and foreign markets.

24. Section 299(1) concerns passive bribery. An employee or agent of a business will be guilty of passive bribery if he or she demands, allows himself or herself to be promised, or accepts a benefit[25] for himself or herself or another in a business transaction[26] for the giving of a business preference to another unfairly. Under this section that it is not necessary that there be a breach of duty between the employer and employee or principal and agent.

25. Section 229(2) concerns active bribery. A person will be guilty of active bribery if, for competitive purposes, he or she offers, promises or grants and employee or agent of a business a benefit[27] for that employee or a third party in a business transaction. In addition the benefit must be consideration for the employee providing the person or another with a preference unfairly. Also under this section, as above, it is not necessary that there be a breach of duty between the employer and employee or principal and agent.

26. Under section 299, only natural persons can be charged with bribery and therefore, both business owners and employers cannot be charged with the crime. However, both "employee" and "agent" are given a broad interpretation. "Employee" includes person bound to the instructions of the entity. "Agent" includes any person with a special function in the commercial enterprise and covers general managers, directors, bankruptcy administrators and commercial representatives.

27. The maximum penalty for both of these offences is three years' imprisonment or a fine. Further if a natural person commits the offence, the company for whom he or she works can be made subject to a forfeiture order or an administrative fine up to one million Euros.

15. Jurisdiction

28. The provisions on private bribery apply to foreign competition as well as national competition. As stated above, the German criminal law generally also applies to offences committed overseas if they are committed by a German national or are committed jointly by co-defendants acting in Germany or the effects of the offence are to the detriment of a German national (legal or natural persons).

16. ITALY

17. Private persons

29. There is no specific offence of private commercial bribery in Italy. Therefore it is not a crime to bribe an employee of a private commercial enterprise. However, there is a wide range of other criminal offences that are used in practice to prosecute such cases.[28]

18. Public bribery and foreign public officials

30. There are various sections in the Penal Code that cover the area of public bribery.

31. Article 318 covers bribery "with regard to lawful acts of the office". It provides a public officer will be guilty of this type of bribery if, acting in an official capacity, he or she receives, for himself or herself or a third party compensation, in the form of money or any other object of value, not due, or accepts a promise thereof. The maximum penalty for this offence is imprisonment for between six months to three years.

32. Article 319 covers bribery "with regard to acts contrary to the duty of his office". It provides that a public officer will be guilty of this type of bribery if he or she receives for himself or herself or a third party, money or any other object of value or accepts a promise thereof in return for omitting or delaying an official act. The maximum penalty for this offence is between two to five years' imprisonment.

33. Article 320 covers bribery "of persons charged with a public service". It provides that Article 319 applies to persons charged with a public service and that Article 318 applies to persons charged with a public service when they are public employees.

34. Article 321 also provides that the punishments set out in relation to Articles 318 and 319 apply equally to the person "who promises the money or other object of value to a public officer or person charged with a public service".

35. Where a public official is offered a bribe but does not accept it, Article 322 provides separate offence. It states that the person who has unduly offered or promised money or other assets to a public officer in order to induce the officer to do an act related to his or her office, will be liable to the punishment in Article 318 (is imprisonment for between six months to three years) reduced by one-third.

36. Subsection 2 of Article 322 also states if the offer or promise was made in order to induce the public officer to omit or delay an act or act in breach of his or her duties, the offender shall be liable to the punishment in Article 319 (between two to five years' imprisonment) reduced by one-third.

19. Foreign public officials

37. To meet the requirements under the OECD convention on bribery of foreign public officials in business transactions, Article 322-bis[29] extends Articles 321. It therefore now includes: "persons carrying out functions or activities equivalent to those performed by public officials and persons in charge of a public service within other foreign states or public international organisations".

20. Penalties

38. As well as the imprisonment penalties set out above, the following sanctions can also be applied to natural and legal persons:

(p) closing the place of business;

(q) suspension or revocations of licences;

(r) disqualification from committing the acts with which the offence was concerned;

(s) prohibition from dealing with the public administration;

(t) temporary exclusion from advertising goods and services; and

(u) publication of the sentence.

21. Jurisdiction

39. Italian law applies to nationals who commit offences overseas if:

(v) the offender is within Italian territory;

(w) the offence is punishable by Italian law by at least three years' imprisonment; and

(x) where the offence was committed to the detriment of the EC or a foreign country, at the request of the Minister of Justice and only where extradition has not been granted or requested by the country in which the offence was committed.

40. Italian law also applies to non-nationals provided that:

(y) the offence was committed within Italian territory;

(z) the offence was committed to the detriment of the Italian State or an Italian citizen and the offence is punishable by at least one years' imprisonment or committed to the detriment of the EC or a foreign country or alien and be punishable by at least three years' imprisonment; and

(aa) In the case of detriment to the Italian state or a national, at the request of the minister of justice or complaint by the victim, or, in the case of the EC or foreign country or alien, on request of the minister of justice and where extradition has not been granted or requested by the country in which the offence was committed.

22. JAPAN

41. In Japan the focus of the bribery provisions is the protection of integrity and loyalty to the principal (the Government) for public bribery and the protection of duty of loyalty or trust between and employer and employee for private bribery. Fair competition is not seen as a protected legal interest of bribery.

23. Private bribery

42. There is no express law in Japan that makes private commercial bribery an offence. However, there is an offence of breach of trust in the Penal Code that is sometimes used to prosecute situations akin to private bribery. Further the Code of Commerce prohibits private bribery. Article 493 makes it an offence to give or receive a bribe[30] "in connection with one's duties" and in response to an "unlawful solicitation". The maximum penalty for receiving a bribe is five years' imprisonment with forced labour or a fine of up to five million yen and the maximum penalty for giving a bribe is three years' imprisonment and a fine of up to three million yen.

43. The offence in Article 493 applies to certain types of recipients, namely, promoters, directors, auditor, acting director, acting auditor, manager or any other employee entrusted to undertake certain kinds of commercial matters. However, there are no specified types of payer.

44. There is also a defence of "mere gift" to the Code of Commerce provisions. Therefore if P can prove the bribe was actually a gift he or she will have a defence. However, it is not a defence that P's actions were encouraged or condoned by his or her employer although in such situations P's employer can be prosecuted as a co-principal, instigator or accessory.

24. Public bribery

45. The provisions on bribery in the Japanese Penal Code apply to bribery of government employees and "persons deemed to be a public servant".[31] By using the terms of persons deemed to be a public servant, the Penal Code opens up the bribery provisions to cover:

(bb) government officials;

(cc) public entity officials;

(dd) public corporation officials;

(ee) assembly persons;

(ff) committee persons; and

46. A bribe is defined as not only a benefit of a pecuniary nature but also any interest that may satisfy any demand or desire, such as sexual amusement, position, employment, entrance to public university etc.

47. Article 197-1 makes it an offence for a public servant to accept a bribe. Such an offence is committed when a public servant or arbitrator, upon solicitation, receives, demands or bargains for a bribe in connection with his or her duties. The maximum penalty for this offence is five years' imprisonment with forced labour. However, if the public servant or arbitrator accepts a solicitation the sentence is increased to a maximum seven years' imprisonment with forced labour.

48. The second part to Article 197-2 extends this offence to a person who "intends to become a public servant or an arbitrator" and who "receives, demands, or bargains for a bribe on acceptance of solicitation in connection with his/her duties he/she is to perform". The maximum penalty for this offence is five years' imprisonment with forced labour and the penalty applies once the person has become a public servant or arbitrator.

49. Article 197-2 prohibits a public servant from bribing third parties. Such an offence is committed where a public servant or arbitrator, upon solicitation, causes, demands or bargains for a bribe to be given to a third party in connection with his or her duties. The maximum penalty for this offence is five years' penal servitude.

50. Article 197-4 makes it an offence for a public official to cause another official to behave dishonestly. Such an offence is committed if a public officer receives, demands or promises a bribe, as a reward for arranging or having arranged, on request, to cause another public officer to perform an improper action in the course of his or her duties. The maximum penalty for this offence is imprisonment with forced labour for not more than five years.

51. A person who gives a bribe in the same manner as set out in Article 197-4 is also guilty of an offence.[33] The maximum penalty for this offence is fine of not more than two million and five hundred thousand yen or a maximum three years' imprisonment with forced labour.

52. This offence has recently been supplemented by the Law on Punishment of Elected Public Office Holders for Receiving Graft for Arrangement. This Act makes it an offence for politicians and secretaries to receive money or goods from corporations or individuals in return for pressuring other civil servants to perform political favours. The maximum sentence for this offence is dependent on who the offender is. Politicians are liable to a maximum sentence of three years' imprisonment with forced labour. For secretaries the maximum is two years.

53. As with the Commercial Code a defendant is often able to argue as a successful defence that the bribe was in fact a "gift in ordinary life".[34]

25. Jurisdiction

54. The above offences apply to both domestic contracts and contracts with foreign parties and international businesses.

26. Foreign officials

55. The Unfair Competition Prevention Act revised in 1998 makes it an offence to bribe a foreign public official. The Act applies to both foreign government officials and government affiliated institutions and purports to protect fair and free competition. The Act provides that a person is guilty of an offence if he or she gives, offers or promises any undue pecuniary or other advantage so that the official acts or refrains from acting in relation to his or her official duties in order to gain an improper business advantage.

56. The maximum penalty for this offence for natural persons is a fine of up to three million yen for and/or imprisonment for up to three years. Legal persons can be fined up to 300 million yen.

27. Jurisdiction

57. Article 1 of the Penal Code on territorial principles results in the provisions on bribery applying to any person who commits a crime in Japan irrespective of their nationality. For offences of bribery committed outside of Japan, neither Japanese nationals nor foreign nationals are guilty of offences, even if the bribe is given to a Japanese foreign official.[35] However, a Japanese public official who accepts a bribe abroad given by a Japanese or foreign national is guilty of an offence under Article 4 of the Penal Code.

28. AUSTRALIA

29. Commonwealth

30. Public officials

58. The statutory provisions in Australia apply only to bribery of public officials. Sections 141.1 and 142.1 of the Commonwealth Criminal Code make it an offence to give a bribe or corrupting benefit to a Commonwealth public official and for a Commonwealth public official to receive a bribe or corrupting benefit.[36] Under sections 141.1(1) and 142.1(1) a person is guilty of an offence of giving a bribe or corrupting benefit to a Commonwealth public official if he or dishonestly:

(hh) provides a benefit;

(ii) causes a benefit to be provided; or

(jj) causes an offer of the provision of a benefit or a promise of the provision of a benefit to be made.

59. In addition the person must do the above with the intention of influencing a Commonwealth public official in exercise of his or her duties The maximum penalty for the bribery offence is 10 years' imprisonment. The maximum penalty for the corrupting benefit offence is five years' imprisonment.

60. Section 141.1(3) and section 142.1(3) state that a Commonwealth public official is guilty of receiving a bribe or corrupting benefit if he or she dishonestly:

(kk) asks for a benefit for himself or herself or another;

(ll) receives or obtains a benefit for himself or herself or another; or

(mm) agrees to receive or obtain a benefit for himself or herself or another person.

61. In addition the public official must do the above with the intention that the exercise of his or her duties will be influenced or of inducing, fostering or sustaining a belief that his or her duties will be influenced. The maximum penalty for the bribery offence is 10 years' imprisonment. The maximum penalty for the corrupting benefit offence is five years' imprisonment.

31. JURISDICTION

62. Section 141.1(4) in relation to bribery of commonwealth public officials and section 142.3 in relation to giving a corrupting benefit to commonwealth public officials provide that section 15.4 on extended geographical jurisdiction applies to both offences.

63. Section 15.4 provides that sections falling within its provisions apply:

(nn) whether or not the offence is committed in Australia; and

(oo) whether or not the effects of the offence were felt in Australia.

64. In addition section 16.1 provides that if an offence falls within section 15.4's extended geographical jurisdiction the Attorney General's consent will be required before a prosecution can take place if:

(pp) the offence occurs wholly outside of Australia; and

(qq) at the time the offence was committed P was neither an Australian citizen nor a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

32. Foreign public officials

65. Under section 70.2 a person is guilty of an offence if he or she provides, causes to be provided or offers to provide or promises to provide an offer of a benefit to another person and that is not legitimately due. In addition the person must intend to influence a foreign public official[37] (who may be the other person) in the exercise of his or her in order to:

(rr) obtain or retain business; or

(ss) 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).

66. In determining whether a benefit is not legitimately due, the court is required to disregard the following:

(tt) the fact that the benefit may be customary, or perceived to be customary, in the situation;

(uu) the value of the benefit; and

67. In determining if a business advantage is not legitimately due, the court is required to disregard the following:

(ww) the fact that the business advantage may be customary, or perceived to be customary, in the situation;

(xx) the value of the business advantage; and

68. The maximum penalty for this offence is 10 years' imprisonment.

69. Under this section "benefit" is given a wide interpretation to include any advantage and this advantage is not limited to property.

70. Section 70.3 provides a defence where the conduct of the foreign public official that is sought by the payer is lawful in the foreign public official's country. There is also a defence for facilitation payments.

33. JURISDICTION

71. Under section 70.5(2) a person will not be guilty of an offence under section 70.2 unless:

(zz) the conduct constituting the alleged offence occurs wholly or partly in Australia or wholly or partly on board an Australian aircraft or ship; or

(aaa) the conduct constituting the alleged offence occurs wholly outside Australia and the perpetrator is an Australian citizen or resident or a body corporate incorporated by or under a law of the Commonwealth or of a State or Territory.

72. In addition proceedings for bribery of foreign public officials must, according to section 70.5(2) not be commenced without the Attorney General's written consent if:

(bbb) the conduct constituting the alleged offence occurs wholly outside Australia; and

(ccc) at the time of the alleged offence, the person alleged to have committed the offence is: a resident of Australia; and not an Australian citizen.

34. CANADA

35. Public officials

73. Section 119(1)(a) of the Criminal Code makes it an offence for a holder of a judicial office, a Member of Parliament or of the legislature to receive a bribe. It provides an offence will be committed if the official corruptly accepts, obtains, agrees to accept, or attempts to obtain any benefit[40] for himself or herself or another person in respect of anything done or omitted to be done by him or her in his of her official capacity.

74. Section 119(1)(b) of the same Code makes it an offence for a person to bribe a holder of judicial office, a Member of Parliament or of the legislature. It provides an offence will be committed if a person corruptly gives or offers any benefit[41] in respect of anything done or omitted or to be done or omitted by him or her in his or her official capacity for himself or herself or another person.

75. Consent of the Attorney General is required before a prosecution can be initiated[42] and the maximum penalty for both offences is 14 years' imprisonment.[43]

76. Section 120(a) of the same Code provides a similar offence for justices, police commissioners, peace officers, public officers or officers of a juvenile court, or employees in the administration of criminal law who corruptly accept or obtain benefits.[44] In addition to obtaining or accepting the benefit the official must do this with intent:

(ddd) to interfere with the administration of justice;

(eee) to procure or facilitate the commission of an offence; or

(fff) to protect from detection or punishment a person who has committed or who intends to commit an offence.

77. Section 120(b) provides the corresponding offence that makes it an offence for anyone to corruptly give or offer a benefit[45] to any of the officials in the above paragraph with the same intent.

78. The maximum term for both offences is 14 years' imprisonment.

36. Foreign public officials

79. Section 3(1) of The Corruption of Foreign Public Officials Act 1999 makes it an offence for any person, in order to obtain or retain a business advantage, to directly or indirectly give or offer or agree to give any loan, reward, advantage or benefit of any kind in consideration for either:

80. There is a defence available if the recipient can prove that the payment was a "facilitation payment" to expedite or secure the performance of any act of a routine nature that is part of the official's duties of functions.[48]

37. NEW ZEALAND

38. Public officials

81. The Crimes Act 1961 in New Zealand applies to bribery of public officials. Bribery is defined under the Act as "any money, valuable consideration, office or employment, or any benefit, whether direct or indirect".[49] Section 105(1) makes it an offence for a public official,[50] whether in New Zealand or not, to corruptly accept, obtain, agree, offer to accept or attempt to obtain a bribe for him or herself, in respect of his or her official duties. Section 105(2) contains the corresponding offence which prohibits anyone corruptly giving, offering or agreeing to give or offer any bribe with the intent that the bribe influence the official in respect of his or her official duties. The maximum penalty for both these offences is seven years' imprisonment.

82. The Crimes Act 1961 also contains similar offences in respect of bribing judicial officers,[51] ministers of the Crown,[52] members of Parliament[53] and law enforcement officers.[54]

39. Jurisdiction

40. GEOGRAPHY

83. Section 105(1) states that it matters not whether the public official was in New Zealand when he or she accepted the bribe. In addition the provisions of section 105 of the Act appear to fall within the general application provisions of the same Act.

84. Section 5(2) provides that the Crimes Act applies to all acts done or omitted in New Zealand. Section 6 states that in general, no act done or omitted outside New Zealand is an offence in New Zealand. However, if part of the act done or omitted to be done that forms part of the commission of the offence is committed in New Zealand the offence is deemed to have been committed in New Zealand by virtue of section 7. Section 8 also provides the New Zealand courts have jurisdiction where P is:

(iii) on board any Commonwealth ship;

(jjj) on board any New Zealand aircraft;

(kkk)on board any ship or aircraft, if that person arrives in New Zealand on that ship or aircraft in the course or at the end of a journey during which the act was done or omitted;

(lll) a British subject, on board any foreign ship (not being a ship to which he belongs) on the high seas, or on board any such ship within the territorial waters of any Commonwealth country; or

(mmm)a New Zealand citizen or a person ordinarily resident in New Zealand, on board any aircraft provided the act was not done or omitted by a person, not being a British subject, on any ship or aircraft for the time being used as a ship or aircraft of any of the armed forces of a country that is not a Commonwealth country unless the act or omission would not have been an offence under the law of the country of which the person charged was a national or citizen at the time of the act or omission.

41. PERSONS TO WHOM THE SECTION APPLIES

85. A public official is defined by section 99 as: any person in the service of Her Majesty (whether honorary or not, and whether within or outside New Zealand), or any member or employee of any local authority or public body, or any person employed in the Education service.

86. A payer who bribes a public official would appear to mean a citizen or ordinary resident of New Zealand. Ordinary resident is defined by section 4 of the Crimes Act as someone:

(nnn) whose home is in New Zealand;

(ooo) who is residing in New Zealand with the intention of residing therein indefinitely; or

(ppp) who having resided in New Zealand with the intention of establishing his or her home therein, or with the intention of residing in New Zealand indefinitely, he or she is outside New Zealand but has an intention to return to establish his or her home therein or to reside in New Zealand indefinitely.

42. Foreign public officials

87. Section 105C of the Crimes Act 1961 sets out an offence of bribing a foreign public official. Section 105C(2) provides a person will be guilty of such an offence if he or she corruptly gives or offers or agrees to give a bribe to a person with intent to influence a foreign public official[55] 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:

(qqq) obtain or retain business; or

(rrr) obtain any improper advantage in the conduct of business.

88. The section does not apply if 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 the value of the benefit is small.[56]

89. Under section 106D a person cannot be prosecuted for bribing a foreign public official without the leave of the Attorney General, who before giving leave may make such inquiries as he thinks fit.

43. Jurisdiction

90. Section 105D provides that if P commits an offence against section 105C but the public official is outside New Zealand territory he or she is still guilty of an offence provided P is :

(sss) a New Zealand citizen;

(ttt) ordinarily resident in New Zealand;

(uuu) a body corporate incorporated in New Zealand;

(vvv) a corporation sole incorporated in New Zealand.

91. However, section 105E provides that no offence will be committed if the act that is alleged to constitute an offence:

(www) was done outside New Zealand; and

(xxx) was not, at the time of its commission, an offence under the laws of the foreign country in which the principal office of the person, organisation, or other body for whom the foreign public official is employed or otherwise provides services, is situated.

44. SOUTH AFRICA

92. The Prevention and Combating of Corrupt Activities Act 2004 criminalises corruption in both the public and private sectors, including foreign officials. Section 3 contains a general offence of corruption which makes it an offence for any person to, directly or indirectly, accept, agree, offer, give or offer to give to any other person any gratification (whether for his or her own benefit or not) in order to act personally or by influencing another to so act, in a manner that amounts to either:

(yyy) an illegal, dishonest, unauthorised, incomplete or biased exercise of any powers, duties or functions arising out of an obligation;

(zzz) a misuse or selling of information or material acquired in the course of the exercise of any powers, duties or functions arising out of an obligation;

(aaaa) the abuse of a position of authority;

(bbbb) a breach of trust; or

(cccc) the violation of a legal duty or set of rules;

or is designed to achieve an unjustified result or that amounts to any other unauthorised or improper inducement to do or not to do anything.

93. Sections 4 to 9 contain similarly worded provisions in respect of the following individuals:

94. The Act also criminalises certain corrupt acts, including:

95. Section 25 provides it is not a defence to the above offences for P to claim he or she:

(pppp) did not have the power, right or opportunity to perform or not perform the act in relation to which the gratification was given, accepted or offered;

(qqqq) accepted or agreed or offered to accept, or gave or agreed or offered to give the gratification without intending to perform or not to perform the act in relation to which the gratification was given, accepted or offered;

(rrrr) failed to perform or not to perform the act in relation to which the gratification was given, accepted or offered.

45. Foreign public officials

96. On 12 June 2007 South Africa became the 37th signatory and first African country to join the OECD's Anti-Bribery Convention which outlaws the bribery of foreign public officials in international business transactions. It is thought as the above law already extends to foreign public officials, the provisions are likely to stay the same.

10 Defined by the section to include persons holding public authority or discharging a public service mission, or persons holding a public electoral mandate. Back

11 Act No 2000-595 of 20 June 2000, s 3. Back

12 Defined by the article as "a European civil servant, a Member State's civil servant or a member of the European Commission, Parliament, European Court of Justice [or] European Court of Auditors". Back

13 Criminal Code, Article 113-6. Back

14 Criminal Code, Article 113-7. Back

15 Including a person with "special public service obligations". Back

16 Article 331(2) provides a similar offence in relation to judges and arbitrators. Back

17 Including a person with specific public service obligations and a solider in the armed forces. Back

18 Article 332(2) provides a similar offence in relation to judges and arbitrators. Back

19 Including a person with "special public service obligations". Back

20 Article 333(2) provides a similar offence in relation to judges and arbitrators. Back

21 Including a person with specific public service obligations and a solider in the armed forces. Back