Commonwealth Numbered Acts Commonwealth Numbered Acts
1 At the end of section 6
Add:
(8) Part 3-7 deals with offences in relation to corrupting benefits.
2 Section 12
Insert:
"cash or in kind payment " : see subsection 536F(4).
"prohibited beneficiary " : see subsection 536F(5).
"registered organisations officer or employee " : see section 536E.
"relevant affairs " , in relation to a registered organisations officer or employee, means the affairs of:
(a) if the registered organisations officer or employee is an officer or employee of an organisation--the organisation and any branch of the organisation, including the affairs of the members of the organisation or any of those branches; or
(b) if the registered organisations officer or employee is an officer or employee of a branch of an organisation--the branch, including the affairs of the members of the branch.
3 At the end of Chapter 3
Add:
Part 3-7 -- Corrupting benefits
This Part is about corrupting benefits provided to or in relation to organisations.
Division 2 prohibits benefits intended to influence an officer or employee of an organisation.
Division 3 prohibits national system employers providing cash or in kind payments to employee organisations and related persons, other than certain legitimate benefits specified in the Division.
536B Meanings of employee and employer
In this Part, employee and employer have their ordinary meanings.
536C Concurrent operation of State and Territory laws
(1) This Part does not exclude or limit the operation of a law of a State or Territory that is capable of operating concurrently with this Part.
(2) Without limiting subsection (1), this Part does not exclude or limit the concurrent operation of a law of a State or Territory to the extent that:
(a) the law makes an act or omission:
(i) an offence; or
(ii) subject to a civil penalty; and
(b) that (or any similar) act or omission is also an offence against a provision of this Part.
(3) Subsection (2) applies even if the law of the State or Territory does any one or more of the following, in relation to the offence or civil penalty:
(a) provides for a penalty that differs from the penalty provided for in this Part;
(b) provides for fault elements that differ from the fault elements applicable to the offence created by this Part;
(c) provides for defences or exceptions that differ from the defences or exceptions applicable to the offence created by this Part.
(1) For the purposes of this Part, dishonest means:
(a) dishonest according to the standards of ordinary people; and
(b) known by the defendant to be dishonest according to the standards of ordinary people.
(2) In a prosecution for an offence against this Part, the determination of dishonesty is a matter for the trier of fact.
Division 2 -- Giving, receiving or soliciting corrupting benefits
536D Giving, receiving or soliciting a corrupting benefit
Giving a corrupting benefit
(1) A person (the defendant ) commits an offence if:
(a) the defendant dishonestly :
(i) provides a benefit to another person; or
(ii) causes a benefit to be provided to another person; or
(iii) offers to provide, or promises to provide, a benefit to another person; or
(iv) causes an offer of the provision of a benefit, or a promise of the provision of a benefit, to be made to another person; and
(b) the defendant does so with the intention of influencing a registered organisations officer or employee (who may be the other person):
(i) in the performance of his or her duties or functions as such an officer or employee; or
(ii) in the exercise of his or her powers or performance of his or her functions under this Act or the Registered Organisations Act; or
(iii) to give an advantage of any kind in connection with the relevant affairs, which would not be legitimately due, to the defendant, a spouse (within the meaning of the Registered Organisations Act) or associated entity of the defendant, or a person who has a prescribed connection with the defendant.
Penalty:
(a) for an individual--imprisonment for 10 years or 5,000 penalty units, or both; or
(b) for a body corporate--25,000 penalty units.
Receiving or soliciting a corrupting benefit
(2) A person (the defendant ) commits an offence if:
(a) the defendant dishonestly :
(i) requests (whether or not expressly and whether or not by threats); or
(ii) receives or obtains; or
(iii) agrees to receive or obtain;
a benefit from a person (the provider ) for the defendant or another person; and
(b) the defendant does so with the intention that, or the intention that the provider believes that, the receipt, or expectation of the receipt, of the benefit will influence a registered organisations officer or employee (who may be the defendant):
(i) in the performance of his or her duties or functions as such an officer or employee; or
(ii) in the exercise of his or her powers or performance of his or her functions under this Act or the Registered Organisations Act; or
(iii) to give an advantage of any kind in connection with the relevant affairs , which would not be legitimately due, to the provider, a spouse (within the meaning of the Registered Organisations Act) or associated entity of the provider, or a person who has a prescribed connection with the provider.
Penalty:
(a) for an individual--imprisonment for 10 years or 5,000 penalty units, or both; or
(b) for a body corporate--25,000 penalty units.
No need for actual influence etc.
(3) For the purposes of paragraphs (1)(b) and (2)(b):
(a) the defendant's intention does not need to be in relation to a particular registered organisations officer or employee; and
(b) the defendant's intention does not need to be in relation to a registered organisations officer or employee performing or exercising duties, functions or powers in a particular way, or giving a particular advantage to a particular person; and
(c) the provider mentioned in subsection (2) does not need to actually believe anything; and
(d) it is not necessary that any person actually be influenced.
Giving an advantage which would not be legitimately due
(4) In a prosecution for an offence against subsection (1) or (2), the determination of whether an advantage would not be legitimately due is a matter for the trier of fact.
(5) For the purposes of subparagraphs (1)(b)(iii) and (2)(b)(iii), an advantage may be given in any way, including by doing or not doing a thing, or causing or influencing another person to do or not do a thing.
(6) In working out whether an advantage would not be legitimately due to a person, disregard:
(a) whether the advantage might be, or be perceived to be, customary, necessary or required in the situation; and
(b) the value of the advantage; and
(c) any official tolerance of the advantage.
Meaning of benefit in this section
(7) In this section:
"benefit " includes any advantage and is not limited to property.
536E Meaning of registered organisations officer or employee
Each of the following is a registered organisations officer or employee :
(a) an officer (within the meaning of the Registered Organisations Act) of an organisation or branch of an organisation;
(b) an employee of an organisation or branch of an organisation.
Division 3 -- Cash or in kind payments to employee organisations etc.
536F Giving a cash or in kind payment
Giving a cash or in kind payment
(1) A person (the defendant ) commits an offence if:
(a) the defendant is a national system employer other than an employee organisation; and
(b) the defendant:
(i) provides a cash or in kind payment to another person; or
(ii) causes a cash or in kind payment to be provided to another person; or
(iii) offers to provide, or promises to provide, a cash or in kind payment to another person; or
(iv) causes an offer of the provision of a cash or in kind payment, or a promise of the provision of a cash or in kind payment, to be made to another person; and
(c) the other person is an employee organisation or a prohibited beneficiary in relation to an employee organisation; and
(d) the defendant, a spouse (within the meaning of the Registered Organisations Act) or associated entity of the defendant, or a person who has a prescribed connection with the defendant, employs a person who is, or is entitled to be, a member of the organisation and whose industrial interests the organisation is entitled to represent.
Penalty:
(a) for an individual--imprisonment for 2 years or 500 penalty units, or both; or
(b) for a body corporate--2,500 penalty units.
(3) Subsection (1) does not apply to the following cash or in kind payments:
(a) a payment to the organisation:
(i) made by deduction from the wages of an employee of the defendant who has agreed in writing to become a member of the organisation; and
(ii) made for a membership fee payable by the employee;
(b) a benefit provided and used for the sole or dominant purpose of benefiting the defendant's employees, or the defendant's former employees in relation to their former employment;
(c) a gift or contribution deductible under section 30-15 of the Income Tax Assessment Act 1997 and used in accordance with the law;
(ca) a benefit of nominal value (meaning no more than 2 penalty unit s) associated with travel or hospitality during consultation, negotiat ion or bargaining;
(cb) a benefit of nominal value (meaning no more than 2 penalty units) that is:
(i) a token gift, an event invitation or a similar benefit; and
(ii) given in accordance with common courteous practice among employers and organisations;
(d) a payment made, at no more than market value, for goods or services supplied to the defendant in the ordinary course of the organisation's business;
(e) a payment made under or in accordance with a law of the Commonwealth, or a law of a State or Territory;
(f) a benefit provided in accordance with an order, judgment or award of a court or tribunal, or in settlement of a matter before the FWC or a genuine legal dispute ;
(g) a non-corrupting benefit prescribed by, or provided in circumstances prescribed by, the regulations.
Note: A defendant bears an evidential burden in relation to the matters in this subsection (see subsection 13.3(3) of the Criminal Code ).
Meaning of cash or in kind payment
(4) A cash or in kind payment is a benefit that is:
(a) in cash or any other money form; or
(b) goods or services; or
(c) prescribed by the regulations for the purposes of this paragraph.
Meaning of prohibited beneficiary
(5) A person is a prohibited beneficiary in relation to an employee organisation if the person is any of the following:
(a) an entity controlled by the organisation;
(b) a registered organisations officer or employee in relation to the organisation;
(c) a spouse of, or entity controlled by, such an officer or employee;
(d) a person or entity to whom the organisation or a prohibited beneficiary of the organisation requests or directs the defendant to provide a cash or in kind payment;
(e) a person who has a prescribed connection with the organisation or a prohibited beneficiary of the organisation.
(6) In subsection (5), control , entity and spouse have the same meanings as in the Registered Organisations Act.
Meaning of national system employer
(7) Sections 30D and 30N do not apply to extend the meaning of national system employer in this section.
536G Receiving or soliciting a cash or in kind payment
(1) A person (the defendant ) commits an offence if:
(a) the defendant:
(i) requests (whether or not expressly and whether or not by threats); or
(ii) receives or obtains; or
(iii) agrees to receive or obtain;
a cash or in kind payment from a person (the provider ) for the defendant or another person; and
(b) the defendant is an employee organisation or an officer (within the meaning of the Registered Organisations Act) or employee of an employee organisation; and
(c) the provider is a national system employer other than an employee organisation; and
(d) the provider, a spouse (within the meaning of the Registered Organisations Act) or associated entity of the provider, or a person who has a prescribed connection with the provider, employs a person who is, or is entitled to be, a member of the organisation and whose industrial interests the organisation is entitled to represent.
Penalty:
(a) for an individual--imprisonment for 2 years or 500 penalty units, or both; or
(b) for a body corporate--2,500 penalty units.
(2) Subsection (1) does not apply to a cash or in kind payment mentioned in subsection 536F(3).
536H Implied freedom of political communication
(1) This Division does not apply to the extent (if any) that it would infringe any constitutional doctrine of implied freedom of political communication.
(2) Subsection (1) does not limit the application of section 15A of the Acts Interpretation Act 1901 .