Criminal Code Act 1995

Schedule - The Criminal Code  

Section 3

CHAPTER 4 - THE INTEGRITY AND SECURITY OF THE INTERNATIONAL COMMUNITY AND FOREIGN GOVERNMENTS  

Division 70 - Bribery of foreign public officials  

SECTION 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:


(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.




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