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Anti-Bribery Laws in Common Law Jurisdictions$

Stuart H. Deming

Print publication date: 2014

Print ISBN-13: 9780199737710

Published to Oxford Scholarship Online: August 2014

DOI: 10.1093/acprof:oso/9780199737710.001.0001

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(p.327) NEW ZEALAND—APPENDIX V Crimes Act 1961*

(p.327) NEW ZEALAND—APPENDIX V Crimes Act 1961*

Source:
Anti-Bribery Laws in Common Law Jurisdictions
Publisher:
Oxford University Press

105C Bribery of foreign public official

  1. (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

    • foreign country includes—

      1. (a) a territory for whose international relations the government of a foreign country is responsible; and

      2. (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—

      1. (a) a company, wherever incorporated, that—

        1. (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

        2. (p.328) (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

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

        1. (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

        2. (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:

      1. (a) a member or officer of the executive, judiciary, or legislature of a foreign country:

      2. (b) a person who is employed by a foreign government, foreign public agency, foreign public enterprise, or public international organisation:

      3. (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:

      1. (a) an organisation of which 2 or more countries or 2 or more governments are members, or represented on the organisation:

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

      3. (c) an organisation constituted by persons representing 2 or more countries or 2 or more governments:

      4. (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—

      1. (a) any decision about—

        1. (i) whether to award new business; or

        2. (ii) whether to continue existing business with any particular person or body; or

        3. (iii) the terms of new business or existing business; or

      2. (b) any action that is outside the scope of the ordinary duties of that official.

  2. (2) Every one is liable to imprisonment for a term not exceeding 7 years 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—

      1. (a) obtain or retain business; or

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

  3. (p.329) (3) This section does not apply if—

      1. (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

      2. (b) the value of the benefit is small.

  4. (4) This section is subject to section 105E.

105D Bribery outside New Zealand of foreign public official

  1. (1) Every one commits an offence who, being a person described in subsection (2), does, outside New Zealand, any act that would, if done in New Zealand, constitute an offence against section 105C.

  2. (2) Subsection (1) applies to a person who is—

    1. (a) a New Zealand citizen; or

    2. (b) ordinarily resident in New Zealand; or

    3. (c) a body corporate incorporated in New Zealand; or

    4. (d) a corporation sole incorporated in New Zealand.

  3. (3) Every one who commits an offence against this section is liable to the same penalty to which the person would have been liable if the person had been convicted of an offence against section 105C.

  4. (4) This section is subject to section 105E.

105E Exception for acts lawful in country of foreign public official

  1. (1) Sections 105C and 105D do not apply if the act that is alleged to constitute an offence under either of those sections—

      1. (a) was done outside New Zealand; and

      2. (b) 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.

  2. (2) If a person is charged with an offence under section 105C or section 105D, it is to be presumed, unless the person charged puts the matter at issue, that the act was an offence under the laws of the foreign country referred to in subsection (1)(b).

Notes:

(*) Crimes Act 1961, ss. 105C, 105D, 105E (N.Z.).