Corrupt commissions or rewards

Offence title:

Corrupt commissions or rewards

Act:

249B Crimes Act (NSW)

Offence:

(1)   If an agent corruptly receives or solicits, or agrees to same, from another for the agent or anyone else any benefit:

(a)   an inducement or reward of any kind to:

                                           i.         to do or not do something, or having done, or not, something, or

                                         ii.         showing, or not, or having shown, or not, favour or disfavour to any person,

in relation to the affairs or business of the agent’s principal, or

(b)   the receipt or any expectation of which would in any way tend to influence the agent to show, or not, favour or disfavour, to any person in relation to the affairs or business of the agent’s principal,

Commits an offence.

(2)   If any person gives or offers to give to any agent, or another with the consent or at the request of any agent, any benefit:

(a)   As an inducement or reward for or otherwise on account of the agent’s:

                                           i.         Doing, or not, something, or having done or not, something, or

                                         ii.         showing, or not, or having shown, or not, favour or disfavour to any person,

in relation to the affairs or business of the agent’s principal, or

(b)   the receipt or any expectation of which would in any way tend to influence the agent to show, or not, favour or disfavour, to any person in relation to the affairs or business of the agent’s principal,

Commits an offence

Penalty:

(1)   Imprisonment 7 years.

(2)   Imprisonment 7 years.

Summary/Indictable/mixed:

Mixed – if the benefit received or sought exceeds $5,000, otherwise the matter is a Summary offence.

Jurisdiction:

Local, District or Supreme Court.

How committed:

(1)   A building site manager, with control of logistics to the site, demands payment from as particular supplier, to permit his product to be delivered in preference to another.

(2)   A manufacturer offers to provide a cash benefit to a building site manager to ensure the manufacturers product is delivered in advance of another.

Important note:

For the purposes of ss. (1) above, where a benefit is received or solicited by anyone with the consent or at the request of an agent, the agent shall be deemed to have received or solicited the benefit.

Agent includes:

(a)   any person employed by, or acting for or on behalf of, any other person (who in this case is referred to in this Part as the person’s principal) in any capacity,

(b)   any person purporting to be, or intending to become, an agent of any other person (who in this case is referred to in this Part as the person’s principal), and

(c)    any person serving under the Crown (which in this case is referred to in this Part as the person’s principal), and

(d)   a police officer (and in this case a reference in this Part to the agent’s principal is a reference to the Crown), and

(e)   a councillor within the meaning of the Local Government Act 1993 (and in this case a reference in this Part to the agent’s principal is a reference to the local council of which the person is a councillor), and

(f)    a councillor within the meaning of the Aboriginal Land Rights Act 1983 (and in this case a reference in this Part to the agent’s principal is a reference to the New South Wales Aboriginal Land Council), and

(g)   a Board member of a Local Aboriginal Land Council within the meaning of the Aboriginal Land Rights Act 1983 (and in this case a reference in this Part to the agent’s principal is a reference to the Local Aboriginal Land Council).

Benefit includes money and any contingent benefit.

s.249G Repayment of value of gift etc

(1)   If a person is convicted of an offence under this Part, the court may (as well as imposing a penalty for the offence) order the person to pay to such other person as the court directs the whole or part of the amount or the value, assessed by the court, of any benefit received or given by the person.

(2)   Any money payable to a person under this section may be recovered in a court of competent jurisdiction as a debt due to the person.

s.249H Disqualification for office

If a person is convicted of an offence under this Part, the person is disqualified from holding civic office for the purposes of the Local Government Act 1993, for the period of 7 years from the conviction or such lesser period as the court may order.

s.249I Dismissal of trivial case

If, in any proceedings for an offence under this Part, it appears to the court that the offence is of a trivial or merely technical nature, the court may in its discretion dismiss the case.

s.249J Custom not a defence

In any proceedings for an offence under this Part, it is not a defence that the receiving, soliciting, giving or offering of any benefit is customary in any trade, business, profession or calling.