[ CCH Note: Subdiv A heading will be inserted by No 5 of 2024, s 3 and Sch 1 item 1, applicable in relation to conduct engaged in on or after 8 September 2024. The heading will read:

Subdivision A - Definitions

[ CCH Note: Subdiv C will be inserted by No 5 of 2024, s 3 and Sch 1 item 8, applicable in relation to conduct engaged in on or after 8 September 2024. Subdiv C will read:

Subdivision C - Failure to prevent bribery of foreign public officials

SECTION 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.

SECTION 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.

[ CCH Note: Subdiv D will be inserted by No 5 of 2024, s 3 and Sch 1 item 9, applicable in relation to conduct engaged in on or after 8 September 2024. Subdiv D will read:

Subdivision D - Miscellaneous

SECTION 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.

SECTION 70.5D Related bodies corporate  
70.5D
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 .