2004-2005-2006-2007 The Parliament of the Commonwealth of Australia HOUSE OF REPRESENTATIVES Presented and read a first time International Trade Integrity Bill 2007 No. , 2007 (Attorney-General) A Bill for an Act to implement the Australian Government's response to recommendations made by the Inquiry into Certain Australian Companies in relation to the United Nations Oil-for-Food Programme, and for other purposes [Page Break] 1 Short title ........................................................................................... 1 2 Commencement ................................................................................. 1 3 Schedule(s) ........................................................................................ 2 Schedule 1--Enforcing UN sanctions 3 Charter of the United Nations Act 1945 3 Customs Act 1901 18 Schedule 2--Bribery of foreign officials 28 Criminal Code Act 1995 28 Income Tax Assessment Act 1997 28 [Page Break] 2 Government's response to recommendations made 3 by the Inquiry into Certain Australian Companies 4 in relation to the United Nations Oil-for-Food 5 Programme, and for other purposes 6 The Parliament of Australia enacts: 7 1 Short title 8 This Act may be cited as the International Trade Integrity Act 9 2007. 10 2 Commencement 11 (1) Each provision of this Act specified in column 1 of the table 12 commences, or is taken to have commenced, in accordance with International Trade Integrity Bill 2007 No. , 2007 1 [Page Break] 2 according to its terms. 3 Commencement information Column 1 Column 2 Column 3 Provision(s) Commencement Date/Details 1. Sections 1 to 3 The day on which this Act receives the and anything in Royal Assent. this Act not elsewhere covered by this table 2. Schedule 1 A single day to be fixed by Proclamation. However, if any of the provision(s) do not commence within the period of 6 months beginning on the day on which this Act receives the Royal Assent, they commence on the first day after the end of that period. 3. Schedule 2 The day after this Act receives the Royal Assent. 4 Note: This table relates only to the provisions of this Act as originally 5 passed by both Houses of the Parliament and assented to. It will not be 6 expanded to deal with provisions inserted in this Act after assent. 7 (2) Column 3 of the table contains additional information that is not 8 part of this Act. Information in this column may be added to or 9 edited in any published version of this Act. 10 3 Schedule(s) 11 Each Act that is specified in a Schedule to this Act is amended or 12 repealed as set out in the applicable items in the Schedule 13 concerned, and any other item in a Schedule to this Act has effect 14 according to its terms. [Page Break] 2 Schedule 1--Enforcing UN sanctions 3 4 Charter of the United Nations Act 1945 5 1 Section 2 6 Repeal the section, substitute: 7 2 Definitions 8 In this Act: 9 asset means: 10 (a) an asset of any kind or property of any kind, whether tangible 11 or intangible, movable or immovable, however acquired; and 12 (b) a legal document or instrument in any form, including 13 electronic or digital, evidencing title to, or interest in, such an 14 asset or such property, including, but not limited to, bank 15 credits, travellers cheques, bank cheques, money orders, 16 shares, securities, bonds, debt instruments, drafts and letters 17 of credit. 18 CEO, in relation to a Commonwealth entity, means the chief 19 executive officer (however described) of that entity. 20 Charter of the United Nations means the Charter of the United 21 Nations, done at San Francisco on 26 June 1945 [1945] ATS 1. 22 Note: The text of the Charter of the United Nations is set out in Australian 23 Treaty Series 1945 No. 1. In 2007, the text of a Convention in the 24 Australian Treaty Series was accessible through the Australian 25 Treaties Library on the AustLII Internet site (www.austlii.edu.au). 26 Commonwealth entity means: 27 (a) an agency (within the meaning of the Financial Management 28 and Accountability Act 1997); or 29 (b) a Commonwealth authority (within the meaning of the 30 Commonwealth Authorities and Companies Act 1997). 31 designated Commonwealth entity means a Commonwealth entity 32 that is specified in an instrument under section 2A. 33 foreign government entity means: [Page Break] 2 country; or 3 (b) an authority of the government of a foreign country; or 4 (c) an authority of the government of part of a foreign country. 5 officer of a Commonwealth entity includes: 6 (a) the CEO of the Commonwealth entity; and 7 (b) an employee of the Commonwealth entity; and 8 (c) any other person engaged by the Commonwealth entity, 9 under contract or otherwise, to exercise powers, or perform 10 duties or functions, of the Commonwealth entity. 11 public international organisation has the meaning given by 12 section 70.1 of the Criminal Code. 13 State or Territory entity means: 14 (a) a State or Territory; or 15 (b) an authority of a State or Territory. 16 UN sanction enforcement law means a provision that is specified 17 in an instrument under subsection 2B(1). 18 2 After section 2 19 Insert: 20 2A Meaning of designated Commonwealth entity 21 The Minister may, by legislative instrument, specify a 22 Commonwealth entity as a designated Commonwealth entity. 23 2B Meaning of UN sanction enforcement law 24 (1) The Minister may, by legislative instrument, specify a provision of 25 a law of the Commonwealth as a UN sanction enforcement law. 26 (2) The Minister may specify a provision in relation to particular 27 circumstances. 28 (3) The Minister may only specify a provision to the extent that it 29 gives effect to a decision that: 30 (a) the Security Council has made under Chapter VII of the 31 Charter of the United Nations; and [Page Break] 2 in so far as that decision requires Australia to apply measures not 3 involving the use of armed force. 4 Note: Articles 39 and 41 of the Charter provide for the Security Council to 5 decide what measures not involving the use of armed force are to be 6 taken to maintain or restore international peace and security. 7 (4) A provision may be specified whether or not the provision is made 8 for the sole purpose of giving effect to a decision of the Security 9 Council. 10 (5) A provision ceases to be a UN sanction enforcement law to a 11 particular extent if: 12 (a) Article 25 of the Charter of the United Nations ceases to 13 require Australia to carry out a decision referred to in 14 subsection (3); and 15 (b) the provision gave effect to that decision to that extent; and 16 (c) the provision does not give effect to any other decision 17 referred to in subsection (3) to that extent. 18 3 Section 6 19 Before "The Governor-General", insert "(1)". 20 4 Paragraph 6(a) 21 Omit "has made", substitute "makes". 22 5 At the end of section 6 23 Add: 24 (2) Without limiting subsection (1), the regulations may give effect to 25 a decision of the Security Council by any or all of the following 26 means: 27 (a) proscribing persons or entities; 28 (b) restricting or preventing uses of, dealings with, and making 29 available, assets; 30 (c) restricting or preventing the supply, sale or transfer of goods 31 or services; 32 (d) restricting or preventing the procurement of goods or 33 services; 34 (e) providing for indemnities for acting in compliance or 35 purported compliance with those regulations; [Page Break] 2 (g) authorising the making of legislative instruments. 3 (3) Despite subsection 14(2) of the Legislative Instruments Act 2003, 4 regulations made for the purposes of subsection (1) may make 5 provision in relation to a matter by applying, adopting or 6 incorporating any matter contained in an instrument or other 7 writing as in force or existing from time to time. 8 6 At the end of Division 2 of Part 3 9 Add: 10 13A Invalidation of permission, authorisations etc. 11 A licence, permission, consent, approval or authorisation granted 12 under the regulations (a relevant authorisation) is taken never to 13 have been granted if information contained in, or information or a 14 document accompanying, the application for the relevant 15 authorisation: 16 (a) is false or misleading in a material particular; or 17 (b) omits any matter or thing without which the information or 18 document is misleading in a material particular. 19 7 Application 20 Section 13A of the Charter of the United Nations Act 1945, as in force 21 after the commencement of this item, applies in relation to a relevant 22 authorisation granted in respect of an application made on or after that 23 commencement. 24 8 Part 4 (heading) 25 Repeal the heading, substitute: 26 Part 4--Security Council decisions that relate to 27 terrorism and dealings with assets 28 9 Section 14 (definition of asset) 29 Repeal the definition. 30 10 Subsection 20(1) [Page Break] 2 Note: The following heading to subsection 20(1) is inserted "Offence for individuals". 3 11 Paragraphs 20(1)(a) and (b) 4 Omit "person", substitute "individual". 5 12 Subsection 20(1) (penalty) 6 Repeal the penalty. 7 13 At the end of subsection 20(2) 8 Add: 9 Note: For strict liability, see section 6.1 of the Criminal Code. 10 14 Subsection 20(3) 11 Omit "person", substitute "individual". 12 15 At the end of subsection 20(3) 13 Add: 14 Note: The individual bears a legal burden in relation to a matter in 15 subsection (3) (see section 13.4 of the Criminal Code). 16 16 After subsection 20(3) 17 Insert: 18 Penalty for individuals 19 (3A) An offence under subsection (1) is punishable on conviction by 20 imprisonment for not more than 10 years or a fine not exceeding 21 the amount worked out under subsection (3B), or both. 22 (3B) For the purposes of subsection (3A), the amount is: 23 (a) if the contravention involves a transaction or transactions the 24 value of which the court can determine--whichever is the 25 greater of the following: 26 (i) 3 times the value of the transaction or transactions; 27 (ii) 2,500 penalty units; or 28 (b) otherwise--2,500 penalty units. [Page Break] 2 (3C) A body corporate commits an offence if: 3 (a) the body corporate holds an asset; and 4 (b) the body corporate: 5 (i) uses or deals with the asset; or 6 (ii) allows the asset to be used or dealt with; or 7 (iii) facilitates the use of the asset or dealing with the asset; 8 and 9 (c) the asset is a freezable asset; and 10 (d) the use or dealing is not in accordance with a notice under 11 section 22. 12 (3D) An offence under subsection (3C) is an offence of strict liability. 13 Note: For strict liability, see section 6.1 of the Criminal Code. 14 (3E) It is a defence if the body corporate proves that: 15 (a) the use or dealing was solely for the purpose of preserving 16 the value of the asset; or 17 (b) the body corporate took reasonable precautions, and 18 exercised due diligence, to avoid contravening 19 subsection (3C). 20 Note: The body corporate bears a legal burden in relation to a matter in 21 subsection (3E) (see section 13.4 of the Criminal Code). 22 Penalty for bodies corporate 23 (3F) An offence under subsection (3C) is punishable on conviction by a 24 fine not exceeding: 25 (a) if the contravention involves a transaction or transactions the 26 value of which the court can determine--whichever is the 27 greater of the following: 28 (i) 3 times the value of the transaction or transactions; 29 (ii) 10,000 penalty units; or 30 (b) otherwise--10,000 penalty units. 31 17 Subsection 20(4) 32 After "subsection (1)", insert "or (3C)". 33 18 Subsection 21(1) [Page Break] 2 Note: The following heading to subsection 21(1) is inserted "Offence for individuals". 3 19 Paragraph 21(1)(a) 4 Omit "person" (first occurring), substitute "individual". 5 20 Subsection 21(1) (penalty) 6 Repeal the penalty. 7 21 At the end of subsection 21(2) 8 Add: 9 Note: For strict liability, see section 6.1 of the Criminal Code. 10 22 After subsection 21(2) 11 Insert: 12 Penalty for individuals 13 (2A) An offence under subsection (1) is punishable on conviction by 14 imprisonment for not more than 10 years or a fine not exceeding 15 the amount worked out under subsection (2B), or both. 16 (2B) For the purposes of subsection (2A), the amount is: 17 (a) if the contravention involves a transaction or transactions the 18 value of which the court can determine--whichever is the 19 greater of the following: 20 (i) 3 times the value of the transaction or transactions; 21 (ii) 2,500 penalty units; or 22 (b) otherwise--2,500 penalty units. 23 Offence for bodies corporate 24 (2C) A body corporate commits an offence if: 25 (a) the body corporate, directly or indirectly, makes an asset 26 available to a person or entity; and 27 (b) the person or entity to whom the asset is made available is a 28 proscribed person or entity; and 29 (c) the making available of the asset is not in accordance with a 30 notice under section 22. [Page Break] 2 Note: For strict liability, see section 6.1 of the Criminal Code. 3 (2E) It is a defence if the body corporate proves that it took reasonable 4 precautions, and exercised due diligence, to avoid contravening 5 subsection (2C). 6 Note: The body corporate bears a legal burden in relation to a matter in 7 subsection (2E) (see section 13.4 of the Criminal Code). 8 Penalty for bodies corporate 9 (2F) An offence under subsection (2C) is punishable on conviction by a 10 fine not exceeding: 11 (a) if the contravention involves a transaction or transactions the 12 value of which the court can determine--whichever is the 13 greater of the following: 14 (i) 3 times the value of the transaction or transactions; 15 (ii) 10,000 penalty units; or 16 (b) otherwise--10,000 penalty units. 17 23 Subsection 21(3) 18 After "subsection (1)", insert "or (2C)". 19 24 After section 22A 20 Insert: 21 22B Invalidation of notice for false or misleading information 22 A notice under section 22 is taken never to have been made if 23 information contained in, or information or a document 24 accompanying, the application for the notice: 25 (a) is false or misleading in a material particular; or 26 (b) omits any matter or thing without which the information or 27 document is misleading in a material particular. 28 25 Application 29 Section 22B of the Charter of the United Nations Act 1945, as in force 30 after the commencement of this item, applies in relation to a notice 31 made in respect of an application made on or after that commencement. 32 26 After Part 4 [Page Break] 2 Part 5--Offences relating to UN sanctions 3 4 27 Offence--Contravening a UN sanction enforcement law 5 Individuals 6 (1) An individual commits an offence if: 7 (a) the individual engages in conduct; and 8 (b) the conduct contravenes a UN sanction enforcement law. 9 (2) An individual commits an offence if: 10 (a) the individual engages in conduct; and 11 (b) the conduct contravenes a condition of a licence, permission, 12 consent, authorisation or approval (however described) under 13 a UN sanction enforcement law. 14 (3) An offence under subsection (1) or (2) is punishable on conviction 15 by imprisonment for not more than 10 years or a fine not exceeding 16 the amount worked out under subsection (4), or both. 17 (4) For the purposes of subsection (3), the amount is: 18 (a) if the contravention involves a transaction or transactions the 19 value of which the court can determine--whichever is the 20 greater of the following: 21 (i) 3 times the value of the transaction or transactions; 22 (ii) 2,500 penalty units; or 23 (b) otherwise--2,500 penalty units. 24 Bodies corporate 25 (5) A body corporate commits an offence if: 26 (a) the body corporate engages in conduct; and 27 (b) the conduct contravenes a UN sanction enforcement law. 28 (6) A body corporate commits an offence if: 29 (a) the body corporate engages in conduct; and [Page Break] 2 consent, authorisation or approval (however described) under 3 a UN sanction enforcement law. 4 (7) Subsection (5) or (6) does not apply if the body corporate proves 5 that it took reasonable precautions, and exercised due diligence, to 6 avoid contravening that subsection. 7 Note: The body corporate bears a legal burden in relation to a matter in 8 subsection (7) (see section 13.4 of the Criminal Code). 9 (8) An offence under subsection (5) or (6) is an offence of strict 10 liability. 11 Note: For strict liability, see section 6.1 of the Criminal Code. 12 (9) An offence under subsection (5) or (6) is punishable on conviction 13 by a fine not exceeding: 14 (a) if the contravention involves a transaction or transactions the 15 value of which the court can determine--whichever is the 16 greater of the following: 17 (i) 3 times the value of the transaction or transactions; 18 (ii) 10,000 penalty units; or 19 (b) otherwise--10,000 penalty units. 20 Definitions 21 (10) In this section: 22 engage in conduct means: 23 (a) do an act; or 24 (b) omit to perform an act. 25 28 Offence--False or misleading information given in connection 26 with a UN sanction enforcement law 27 (1) A person commits an offence if: 28 (a) the person gives information or a document to a 29 Commonwealth entity; and 30 (b) the information or document is given in connection with the 31 administration of a UN sanction enforcement law; and 32 (c) the information or document: 33 (i) is false or misleading; or [Page Break] 2 or document is misleading. 3 Penalty: Imprisonment for 10 years or 2,500 penalty units, or 4 both. 5 (2) A person (the first person) commits an offence if: 6 (a) the first person gives information or a document to another 7 person; and 8 (b) the first person is reckless as to whether the other person or 9 someone else will give the information or document to a 10 Commonwealth entity in connection with the administration 11 of a UN sanction enforcement law; and 12 (c) the information or document: 13 (i) is false or misleading; or 14 (ii) omits any matter or thing without which the information 15 or document is misleading. 16 Penalty: Imprisonment for 10 years or 2,500 penalty units, or 17 both. 18 (3) Subsection (1) or (2) does not apply: 19 (a) as a result of subparagraph (1)(c)(i) or (2)(c)(i)--if the 20 information or document is not false or misleading in a 21 material particular; or 22 (b) as a result of subparagraph (1)(c)(ii) or (2)(c)(ii)--if the 23 information or document did not omit any matter or thing 24 without which the information or document is misleading in a 25 material particular. 26 Note: A defendant bears an evidential burden in relation to the matter in 27 subsection (3) (see subsection 13.3(3) of the Criminal Code). 28 Geographical application of offences 29 (4) Section 15.1 of the Criminal Code (extended geographical 30 jurisdiction--category A) applies to an offence against 31 subsection (1) or (2). [Page Break] 2 3 29 CEO of Commonwealth entity may give information or 4 document 5 (1) The CEO of a Commonwealth entity may give any information or 6 document to the CEO of a designated Commonwealth entity for a 7 purpose in connection with the administration of a UN sanction 8 enforcement law. 9 (2) Subsection (1) applies despite any other law of the 10 Commonwealth, a State or a Territory. 11 30 Power to require information or documents to be given 12 (1) The CEO of a designated Commonwealth entity may, for the 13 purpose of determining whether a UN sanction enforcement law 14 has been or is being complied with, give a person a written notice 15 requiring the person to do either or both of the following: 16 (a) to give the CEO information of the kind, by the time and in 17 any manner or form, specified in the notice; 18 (b) to give the CEO documents of the kind, by the time and in 19 any manner, specified in the notice. 20 (2) The person must comply with the notice despite any other law of 21 the Commonwealth, a State or a Territory. 22 (3) The time specified in the notice must be reasonable, having regard 23 to all the circumstances. 24 (4) The person may, before the time specified in the notice, request the 25 CEO to extend the time by which the information or documents 26 must be given. 27 (5) The CEO may, by written notice given to the person, vary the 28 notice under subsection (1) to specify a later time by which the 29 information or documents must be given. 30 (6) Subsection (5) does not limit the application of subsection 33(3) of 31 the Acts Interpretation Act 1901 in relation to a notice under 32 subsection (1). [Page Break] 2 revocation and variation etc. of instruments. 3 (7) Subsection (1) does not apply if: 4 (a) the person is the Commonwealth or a Commonwealth entity; 5 or 6 (b) the person: 7 (i) is, or has at any time been, an officer of a 8 Commonwealth entity; and 9 (ii) obtained or generated the information or document in 10 the course of carrying out his or her duties as an officer 11 of the Commonwealth entity. 12 31 Information may be required to be given on oath 13 (1) The CEO may require the information to be verified by, or given 14 on, oath or affirmation. 15 (2) The oath or affirmation is an oath or affirmation that the 16 information is true. 17 32 Offence for failure to comply with requirement 18 (1) A person commits an offence if: 19 (a) the person has been given a notice under section 30; and 20 (b) the person does not comply with the notice. 21 Penalty: Imprisonment for 12 months. 22 (2) Section 15.1 of the Criminal Code (extended geographical 23 jurisdiction--category A) applies to an offence against 24 subsection (1). 25 33 Self-incrimination not an excuse 26 (1) An individual is not excused from giving information or a 27 document under section 30 on the ground that the information, or 28 the giving of the document, might tend to incriminate the 29 individual or otherwise expose the individual to a penalty or other 30 liability. 31 (2) However, neither the information given nor the giving of the 32 document is admissible in evidence against the individual in any [Page Break] 2 individual to a penalty, other than proceedings for an offence 3 against: 4 (a) section 28 (false or misleading information given in 5 connection with a UN sanction enforcement law); or 6 (b) section 32 (failure to comply with requirement to give 7 information or document). 8 34 CEO may copy documents 9 If a person gives a document to the CEO of a designated 10 Commonwealth entity under section 30, the CEO: 11 (a) may take and keep a copy of the document; and 12 (b) must return the document to the person within a reasonable 13 time. 14 35 Further disclosure and use of information and documents 15 Disclosure and use of information etc. within entity 16 (1) An officer of a designated Commonwealth entity may do any of the 17 following for a purpose in connection with the administration of a 18 UN sanction enforcement law or with a decision of the Security 19 Council referred to in section 6: 20 (a) copy, make a record of or use, any information or document; 21 (b) disclose any information, or give any document, to another 22 officer of that entity. 23 Disclosure outside of entity 24 (2) A CEO of a designated Commonwealth entity may disclose any 25 information or give any document to any of the following for a 26 purpose in connection with the administration of a UN sanction 27 enforcement law or with a decision of the Security Council referred 28 to in section 6: 29 (a) a Minister of the Commonwealth, a State or a Territory; 30 (b) the CEO of another Commonwealth entity; 31 (c) a State or Territory entity; 32 (d) a foreign government entity; 33 (e) a public international organisation; 34 (f) a person specified in an instrument under subsection (3). [Page Break] 2 the purposes of paragraph (2)(f). 3 (4) Subsections (1) and (2) apply despite any other law of the 4 Commonwealth, a State or a Territory. 5 36 Protection from liability 6 (1) A person who, in good faith, gives, discloses, copies, makes a 7 record of or uses information or a document under section 29, 30, 8 34 or 35 is not liable: 9 (a) to any proceedings for contravening any other law because of 10 that conduct; or 11 (b) to civil proceedings for loss, damage or injury of any kind 12 suffered by another person because of that conduct. 13 (2) Subsection (1) does not prevent the person from being liable to a 14 proceeding for conduct of the person that is revealed by the 15 information or document. 16 37 Retention of records and documents 17 (1) A person who applies for a licence, permission, consent, 18 authorisation or approval under a UN sanction enforcement law (a 19 relevant authorisation) must retain any records or documents 20 relating to that application for the period of 5 years beginning on: 21 (a) if the relevant authorisation was granted--the last day on 22 which an action to which the relevant authorisation relates 23 was done; or 24 (b) if the relevant authorisation was not granted--the day on 25 which the application was made. 26 (2) A person who is granted a licence, permission, consent, 27 authorisation or approval under a UN sanction enforcement law (a 28 relevant authorisation) must retain any records or documents 29 relating to the person's compliance with any conditions to which 30 the relevant authorisation is subject for the period of 5 years 31 beginning on the last day on which an action to which the relevant 32 authorisation relates was done. 33 Note: A person may commit an offence if the person fails to give under 34 section 30 a record or document that is required to be retained under 35 this section: see section 32. [Page Break] 2 (1) The CEO of a Commonwealth entity may, by written instrument, 3 delegate all or any of his or her powers or functions under this Part 4 to: 5 (a) an SES employee or acting SES employee of the entity; or 6 (b) an employee of the entity of equivalent rank to an SES 7 employee. 8 (2) In exercising powers or performing functions delegated under 9 subsection (1), the delegate must comply with any directions of the 10 CEO. 11 Part 7--Miscellaneous 12 13 39 Regulations 14 The Governor-General may make regulations prescribing matters: 15 (a) required or permitted by this Act to be prescribed; or 16 (b) necessary or convenient to be prescribed for carrying out or 17 giving effect to this Act. 18 Customs Act 1901 19 27 Subsection 4(1) 20 Insert: 21 Charter of the United Nations means the Charter of the United 22 Nations, done at San Francisco on 26 June 1945 [1945] ATS 1. 23 Note: The text of the Charter of the United Nations is set out in Australian 24 Treaty Series 1945 No. 1. In 2007, the text of a Convention in the 25 Australian Treaty Series was accessible through the Australian 26 Treaties Library on the AustLII Internet site (www.austlii.edu.au). 27 28 Subsection 4(1) 28 Insert: 29 UN-sanctioned goods means goods that are prescribed as 30 UN-sanctioned goods under subsection 233BABAA(1). 31 29 At the end of Division 1 of Part IV [Page Break] 2 52 Invalidation of licence, permission etc. for false or misleading 3 information 4 A licence, permission, consent or approval granted in respect of the 5 importation of UN-sanctioned goods is taken never to have been 6 granted if: 7 (a) an application for the licence, permission, consent or 8 approval was made in an approved form; and 9 (b) information contained in, or information or a document 10 accompanying, the form: 11 (i) was false or misleading in a material particular; or 12 (ii) omitted any matter or thing without which the 13 information or document is misleading in a material 14 particular. 15 30 Application 16 Section 52 of the Customs Act 1901, as in force after the 17 commencement of this item, applies in relation to a licence, permission, 18 consent or approval granted in respect of an application made on or 19 after that commencement. 20 31 At the end of Division 1 of Part VI 21 Add: 22 112B Invalidation of licence, permission etc. for false or misleading 23 information 24 A licence, permission, consent or approval granted in respect of the 25 exportation of UN-sanctioned goods is taken never to have been 26 granted if: 27 (a) an application for the licence, permission, consent or 28 approval was made in an approved form; and 29 (b) information contained in, or information or a document 30 accompanying, the form: 31 (i) was false or misleading in a material particular; or 32 (ii) omitted any matter or thing without which the 33 information or document is misleading in a material 34 particular. [Page Break] 2 Section 112B of the Customs Act 1901, as in force after the 3 commencement of this item, applies in relation to a licence, permission, 4 consent or approval granted in respect of an application made on or 5 after that commencement. 6 33 Paragraph 210(1)(b) 7 Omit "or 233BAB(5) or (6)", substitute ", 233BAB(5) or (6), 8 233BABAB(1) or 233BABAC(1)". 9 34 After section 233BAB 10 Insert: 11 233BABAA UN-sanctioned goods 12 (1) The regulations may prescribe specified goods as UN-sanctioned 13 goods. 14 (2) Regulations made for the purposes of subsection (1) may provide 15 that specified goods are only UN-sanctioned goods if: 16 (a) they are imported from, or exported to, a specified place; or 17 (b) the origin, or the final destination, of the goods is a specified 18 place; or 19 (c) other specified circumstances apply in relation to the goods. 20 (3) The regulations must not prescribe goods for the purposes of 21 subsection (1) unless: 22 (a) either: 23 (i) the importation of the goods is prohibited, either 24 absolutely or on condition, by the Customs (Prohibited 25 Imports) Regulations 1956; or 26 (ii) the exportation of the goods is prohibited, either 27 absolutely or on condition, by the Customs (Prohibited 28 Exports) Regulations 1958; and 29 (b) the regulation under which that importation or exportation is 30 prohibited gives effect to a decision that: 31 (i) the Security Council has made under Chapter VII of the 32 Charter of the United Nations; and 33 (ii) Article 25 of the Charter requires Australia to carry out; [Page Break] 2 not involving the use of armed force. 3 Note: Articles 39 and 41 of the Charter provide for the Security Council to 4 decide what measures not involving the use of armed force are to be 5 taken to maintain or restore international peace and security. 6 (4) For the purposes of paragraph (3)(b), a regulation may be taken to 7 give effect to a decision: 8 (a) whether or not it is made for the sole purpose of giving effect 9 to the decision; and 10 (b) whether or not it has any effect in addition to giving effect to 11 the decision. 12 233BABAB Special offences for importation of UN-sanctioned goods 13 Offence for individuals 14 (1) An individual commits an offence if: 15 (a) the individual intentionally imported goods; and 16 (b) the goods were UN-sanctioned goods and the individual was 17 reckless as to that fact; and 18 (c) their importation: 19 (i) was prohibited under this Act absolutely; or 20 (ii) was prohibited under this Act unless the approval of a 21 particular person had been obtained and, at the time of 22 the importation, that approval had not been obtained. 23 (2) Subject to subsection (3), absolute liability applies to 24 paragraph (1)(c). 25 Note: For absolute liability, see section 6.2 of the Criminal Code. 26 (3) For the purposes of an offence against subsection (1), strict liability 27 applies to the physical element of circumstance of the offence, that 28 an approval referred to in subparagraph (1)(c)(ii) had not been 29 obtained at the time of the importation. 30 Note: For strict liability, see section 6.1 of the Criminal Code. 31 Penalty for individuals 32 (4) An offence under subsection (1) is punishable on conviction by 33 imprisonment for not more than 10 years or a fine not exceeding 34 the amount worked out under subsection (5), or both. [Page Break] 2 (a) if the Court can determine the value of the goods to which 3 the offence relates--whichever is the greater of the 4 following: 5 (i) 3 times the value of the goods; or 6 (ii) 2,500 penalty units; 7 (b) if the Court cannot determine the value of those goods-- 8 2,500 penalty units. 9 Offence for bodies corporate 10 (6) A body corporate commits an offence if: 11 (a) the body corporate imported goods; and 12 (b) the goods were UN-sanctioned goods; and 13 (c) their importation: 14 (i) was prohibited under this Act absolutely; or 15 (ii) was prohibited under this Act unless the approval of a 16 particular person had been obtained and, at the time of 17 the importation, that approval had not been obtained. 18 (7) Subsection (6) does not apply if the body corporate proves that it 19 took reasonable precautions, and exercised due diligence, to avoid 20 contravening that subsection. 21 Note: The body corporate bears a legal burden in relation to a matter in 22 subsection (7) (see section 13.4 of the Criminal Code). 23 (8) Strict liability applies to paragraphs (6)(a) and (b). 24 Note: For strict liability, see section 6.1 of the Criminal Code. 25 (9) Subject to subsection (10), absolute liability applies to 26 paragraph (6)(c). 27 Note: For absolute liability, see section 6.2 of the Criminal Code. 28 (10) For the purposes of an offence against subsection (6), strict liability 29 applies to the physical element of circumstance of the offence, that 30 an approval referred to in subparagraph (6)(c)(ii) had not been 31 obtained at the time of the importation. 32 Note: For strict liability, see section 6.1 of the Criminal Code. [Page Break] 2 (11) An offence under subsection (6) is punishable on conviction by a 3 fine not exceeding: 4 (a) if the Court can determine the value of the goods to which 5 the offence relates--whichever is the greater of the 6 following: 7 (i) 3 times the value of the goods; 8 (ii) 10,000 penalty units; or 9 (b) if the Court cannot determine the value of those goods-- 10 10,000 penalty units. 11 Person not liable to other proceedings 12 (12) A person convicted or acquitted of an offence against 13 subsection (1) or (6) in respect of particular conduct is not liable to 14 proceedings under section 233 in respect of that conduct. 15 233BABAC Special offences for exportation of UN-sanctioned goods 16 Offence for individuals 17 (1) An individual commits an offence if: 18 (a) the individual intentionally exported goods; and 19 (b) the goods were UN-sanctioned goods and the individual was 20 reckless as to that fact; and 21 (c) their exportation: 22 (i) was prohibited under this Act absolutely; or 23 (ii) was prohibited under this Act unless the approval of a 24 particular person had been obtained and, at the time of 25 the importation, that approval had not been obtained. 26 (2) Subject to subsection (3), absolute liability applies to 27 paragraph (1)(c). 28 Note: For absolute liability, see section 6.2 of the Criminal Code. 29 (3) For the purposes of an offence against subsection (1), strict liability 30 applies to the physical element of circumstance of the offence, that 31 an approval referred to in subparagraph (1)(c)(ii) had not been 32 obtained at the time of the importation. 33 Note: For strict liability, see section 6.1 of the Criminal Code. [Page Break] 2 (4) An offence under subsection (1) is punishable on conviction by 3 imprisonment for not more than 10 years or a fine not exceeding 4 the amount worked out under subsection (5), or both. 5 (5) For the purposes of subsection (4), the amount is: 6 (a) if the Court can determine the value of the goods to which 7 the offence relates--whichever is the greater of the 8 following: 9 (i) 3 times the value of the goods; 10 (ii) 2,500 penalty units; or 11 (b) if the Court cannot determine the value of those goods-- 12 2,500 penalty units. 13 Offence for bodies corporate 14 (6) A body corporate commits an offence if: 15 (a) the body corporate exported goods; and 16 (b) the goods were UN-sanctioned goods; and 17 (c) their exportation: 18 (i) was prohibited under this Act absolutely; or 19 (ii) was prohibited under this Act unless the approval of a 20 particular person had been obtained and, at the time of 21 the importation, that approval had not been obtained. 22 (7) Subsection (6) does not apply if the body corporate proves that it 23 took reasonable precautions, and exercised due diligence, to avoid 24 contravening that subsection. 25 Note: The body corporate bears a legal burden in relation to a matter in 26 subsection (7) (see section 13.4 of the Criminal Code). 27 (8) Strict liability applies to paragraphs (6)(a) and (b). 28 Note: For strict liability, see section 6.1 of the Criminal Code. 29 (9) Subject to subsection (10), absolute liability applies to 30 paragraph (6)(c). 31 Note: For absolute liability, see section 6.2 of the Criminal Code. 32 (10) For the purposes of an offence against subsection (6), strict liability 33 applies to the physical element of circumstance of the offence, that [Page Break] 2 obtained at the time of the importation. 3 Note: For strict liability, see section 6.1 of the Criminal Code. 4 Penalty for bodies corporate 5 (11) An offence under subsection (6) is punishable on conviction by a 6 fine not exceeding: 7 (a) if the Court can determine the value of the goods to which 8 the offence relates--whichever is the greater of the 9 following: 10 (i) 3 times the value of the goods; 11 (ii) 10,000 penalty units; or 12 (b) if the Court cannot determine the value of those goods-- 13 10,000 penalty units. 14 Person not liable to other proceedings 15 (12) A person convicted or acquitted of an offence against 16 subsection (1) or (6) in respect of particular conduct is not liable to 17 proceedings under section 233 in respect of that conduct. 18 35 Subsection 233BAC(1) 19 Omit "or 233BAB(5) or (6)", substitute ", 233BAB(5) or (6), 20 233BABAB(1) or (4) or 233BABAC(1) or (4)". 21 36 Subsection 233BA(2) 22 After "section 233BAB", insert ", 233BABAB or 233BABAC,". 23 37 After section 233BA 24 Insert: 25 233C Offence for giving false or misleading information in relation 26 to UN-sanctioned goods 27 Individuals 28 (1) An individual commits an offence if: 29 (a) an application is made in respect of UN-sanctioned goods 30 under: 31 (i) the Customs (Prohibited Imports) Regulations 1956; or [Page Break] 2 and 3 (b) the application is made in an approved form; and 4 (c) the individual signed the form; and 5 (d) information contained in, or information or a document 6 accompanying, the form: 7 (i) is false or misleading; or 8 (ii) omits any matter or thing without which the information 9 or document is misleading. 10 Penalty: Imprisonment for 10 years or 2,500 penalty units, or 11 both. 12 Bodies corporate 13 (2) A body corporate commits an offence if: 14 (a) an application is made by or on behalf of the body corporate; 15 and 16 (b) the application is in an approved form; and 17 (c) the application is made in respect of UN-sanctioned goods 18 under: 19 (i) the Customs (Prohibited Imports) Regulations 1956; or 20 (ii) the Customs (Prohibited Exports) Regulations 1958; 21 and 22 (d) information contained in, or information or a document 23 accompanying, the form: 24 (i) is false or misleading; or 25 (ii) omits any matter or thing without which the information 26 or document is misleading. 27 Penalty: 12,500 penalty units. 28 (3) Subsection (1) or (2) does not apply: 29 (a) as a result of subparagraph (1)(d)(i) or (2)(d)(i)--if the 30 information or document is not false or misleading in a 31 material particular; or 32 (b) as a result of subparagraph (1)(d)(ii) or (2)(d)(ii)--if the 33 information or document did not omit any matter or thing 34 without which the information or document is misleading in a 35 material particular. [Page Break] 2 subsection (3) (see subsection 13.3(3) of the Criminal Code). [Page Break] 2 Schedule 2--Bribery of foreign officials 3 4 Criminal Code Act 1995 5 1 After subsection 70.2(1) of the Criminal Code 6 Insert: 7 (1A) In a prosecution for an offence under subsection (1), it is not 8 necessary to prove that business, or a business advantage, was 9 actually obtained or retained. 10 2 Paragraph 70.2(2)(a) of the Criminal Code 11 Repeal the paragraph, substitute: 12 (a) the fact that the benefit may be, or be perceived to be, 13 customary, necessary or required in the situation; 14 3 Subsection 70.3(1) of the Criminal Code (table, heading to 15 column 4) 16 Omit "the person would not have been guilty of an offence 17 against...", substitute "this written law requires or permits the 18 provision of the benefit ...". 19 4 Subsection 70.3(1) of the Criminal Code (table) 20 Before "law in" (wherever occurring), insert "written". 21 Income Tax Assessment Act 1997 22 5 After subsection 26-52(2) 23 Insert: 24 (2A) For the purposes of subsection (2), disregard whether business, or a 25 business advantage, was actually obtained or retained. 26 6 Subsection 26-52(3) 27 Repeal the subsection (including the heading), substitute: [Page Break] 2 requires or permits 3 (3) An amount is not a bribe to a foreign public official if, assuming 4 the benefit had been provided, and all related acts had been done, 5 in the *foreign public official's country, a written law of that 6 country would have required or permitted the provision of the 7 benefit. 8 7 Subsection 26-52(4) 9 Repeal the subsection (not including the heading), substitute: 10 (4) An amount is not a bribe to a foreign public official if: 11 (a) the value of the benefit is of a minor nature; and 12 (b) the amount is incurred for the sole or dominant purpose of 13 expediting or securing the performance of a routine 14 government action of a minor nature. 15 8 Paragraph 26-52(6)(a) 16 Repeal the paragraph, substitute: 17 (a) the fact that the benefit may be, or be perceived to be, 18 customary, necessary or required in the situation; 19 9 Application 20 The amendments of the Income Tax Assessment Act 1997 made by this 21 Schedule apply to a loss or outgoing incurred on or after the 22 commencement of this Schedule.