1. What is the legal structure in New Zealand that governs bribery?
The main piece of legislation governing bribery in New Zealand is the Crimes Act 1961 (CA). Part 6 of the CA (sections 99–106) deals with bribery and corruption in the New Zealand public sector (NZ). Bribery investigations are handled jointly by the Serious Fraud Office and the New Zealand Police.
Bribery in the private sector is dealt with by the Secret Commissions Act 1910 (SCA). Bribing an agent working on behalf of a principal is the most serious kind of corruption.
The Organized Crime and Anti-Corruption Legislation Bill, which was proposed in 2014 and is now in its third reading, is a bill aimed at combating organized crime and corruption. Parts of the CA will be amended by this law, including bribery prohibitions that deal with foreign public officials.
2. What is the definition of a bribe?
Money, valuable consideration, office, or job, or any benefit, whether direct or indirect, is considered a bribe under the CA.
Everyone who corruptly gives, offers, or agrees to give a bribe to any person with the intent of influencing any judicial officer, Crown Minister, member of Parliament, law enforcement officer, official (Person of Position), or foreign public official in their capacity in that role will be in violation of the CA.
Every Person in a Position who corruptly takes or receives, or agrees or proposes to accept or attempts to receive, a bribe for themselves or another person in connection with any conduct done or omitted, or to be done or omitted, by them in their capacity in that role shall be accountable.
3. What are the most serious violations of this legal framework?
Bribery of a foreign (non-NZ) public official (ss 99-106); accepting or obtaining, or agreeing or offering to accept or attempts to obtain a bribe as a Person of Position (ss 99-106); bribery of a foreign (non-NZ) public official (ss 99-106); and bribery of a foreign (non-NZ) public official (ss 99-106). (ss 105C, 105D and 105E).
Under the SCA: A person commits an offence under section 3 of the SCA if they corruptly provide, agree to provide, or propose to give, any gift or other consideration to any agent as an inducement or reward for performing any act in regard to the principal’s affairs or business.
Any agent who corruptly accepts or obtains, or agrees or offers to accept or seek to receive, or solicits from any person, any gift or other consideration as an inducement or reward for conducting any act in relation to the principal’s affairs or business commits an offence under section 4 of the SCA.
4. What is the legal framework’s jurisdictional scope?
The NZ authorities have jurisdiction over bribery charges under sections 99 to 106 of the CA whenever any act or omission occurs in NZ.
If the acts or omissions alleged under sections 100-104 and 105(2) (relating to Persons of Position) occur outside of NZ, proceedings under the CA may be brought against them if they are a NZ citizen, ordinarily resident in NZ, have been found in NZ and not extradited, or are a body corporate incorporated under NZ law.
5. Who can be held accountable for bribery? (government officials, private citizens, legal entities, etc.)
Members of Parliament, private individuals, judicial officers , Ministers of the Crown, law enforcement officers, and officials.
Corporations formed under New Zealand legislation.
6. Can a parent firm be held accountable for bribery committed by a subsidiary?
There are no particular legal provisions that state that a parent firm can be held accountable for a subsidiary’s bribery. However, if specific circumstances are met, a parent corporation could be held accountable under legal principles. For starters, a subsidiary can act as an agent for its parent in specific instances. In addition, it was decided in James Hardie Industries Plc v White that a parent firm could be held accountable in tort for its subsidiary if the parent was directly involved in the conduct that led to the violation. This may also be true in criminal circumstances.
7. Are bribes considered facilitation payments (small payments to expedite regular government action)?
If the facilitation payments (which are not prescribed or outside ordinary procedure) fit the conditions under the CA, they will be regarded bribes, no matter how small the amount.
8. Is there any restriction on political and charity contributions under the law?
A bribe could be considered a political or charitable donation if it was given/offered or accepted with the goal of persuading or rewarding someone for acting corruptly.
If political contributions to foreign (non-NZ) public officials meet the criteria established in sections 105C and 105D of the CA, they will be regarded bribes.
9. Is corporate hospitality subject to any legal restrictions?
Corporate hospitality is not subject to any explicit legislative prohibitions. However, according to the State Services Commission – Understanding the Code of Conduct (Commission Guidance), a government official must decline gifts or benefits that place them under any obligation or perceived influence, and should not seek or accept gifts from or on behalf of anyone who stands to benefit from influencing the individual or the organization.
Members of Parliament are required by the cabinet manual to disclose pecuniary interests and gifts accepted in excess of NZD500 to the Registrar, including hospitality and cash or kind donations.
10. Do bribery offenses have any defenses?
Part 6 of the CA contains no specific statutory defenses.
11. What are the main anti-bribery regulatory or enforcement bodies?
Bribery cases are investigated jointly by the Serious Fraud Office (SFO) and the New Zealand Police. The SFO will look into cases with complicated financial trails or public authorities, while the Police will handle the rest.
12. What are the legal ramifications of being convicted of bribery?
Under the CA, judicial officers who are found guilty of corruptly taking or getting, or agreeing or offering to accept or seeking to receive, any bribe for themselves for any act or omission in their judicial capacity face a sentence of up to 14 years in prison.
On conviction, private persons, Crown Ministers, members of Parliament, law enforcement officers, and officials face a maximum sentence of seven years in prison. Under the SCA, anybody who violates the SCA is subject to a sentence of imprisonment of not more than seven years.
13. Do you have any deferred prosecution agreements (DPAs) or other similar settlement options?
Deferred prosecution agreements or other comparable settlement arrangements do not exist in New Zealand at the moment. In the near future, such agreements or processes may be established.