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What is a facilitation payment in a bribery case?

In essence, a facilitation payment is a small payment that is not a bribe. It needs to be recorded as soon as practicable. It does not cover actions taken in awarding or encouraging new business, allowing existing business to continue, or actions taken about the terms of new business.

Basing a defence to bribery charges on the basis of facilitation payments will be problematic, unless they are very small and attributable to, in essence, greasing the path of a very minor decision.

A facilitation payment in a charge of bribery of a foreign official is defined in the Code as follows:

70.4 Defence – facilitation payments

  1. A person is not guilty of an offence against section 70.2 if:
    1. the value of the benefit was of a minor nature; and
    2. the person’s conduct was engaged in for the sole or dominant purpose of expediting or securing the performance of a routine government action of a minor nature; and
    3. as soon as practicable after the conduct occurred, the person made a record of the conduct that complies with subsection (3); and
    4. any of the following subparagraphs applies:

      1. the person has retained that record at all relevant times;
      2. that record has been lost or destroyed because of the actions of another person over whom the first mentioned person had no control, or because of a non human act or event over which the first mentioned person had no control, and the first mentioned person could not reasonably be expected to have guarded against the bringing about of that loss or that destruction;
      3. a prosecution for the offence is instituted more than 7 years after the conduct occurred.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1). See subsection 13.3(3).

Routine government action

  1. For the purposes of this section, a routine government action is an action of a foreign public official that:
    1. is ordinarily and commonly performed by the official; and
    2. is covered by any of the following subparagraphs:
      1. granting a permit, licence or other official document that qualifies a person to do business in a foreign country or in a part of a foreign country;
      2. processing government papers such as a visa or work permit;
      3. providing police protection or mail collection or delivery;
      4. scheduling inspections associated with contract performance or related to the transit of goods;
      5. providing telecommunications services, power or water;
      6. loading and unloading cargo;
      7. protecting perishable products, or commodities, from deterioration;
      8. any other action of a similar nature; and
    3. does not involve a decision about:
      1. whether to award new business; or
      2. whether to continue existing business with a particular person; or
      3. the terms of new business or existing business; and
    4. does not involve encouraging a decision about:
      1. whether to award new business; or
      2. whether to continue existing business with a particular person; or
      3. the terms of new business or existing business.

Content of records

  1. A record of particular conduct engaged in by a person complies with this subsection if the record sets out:
    1. the value of the benefit concerned; and
    2. the date on which the conduct occurred; and
    3. the identity of the foreign public official in relation to whom the conduct occurred; and
    4. if that foreign public official is not the other person mentioned in paragraph 70.2(1)(a) – the identity of that other person; and
    5. particulars of the routine government action that was sought to be expedited or secured by the conduct; and
    6. the person’s signature or some other means of verifying the person’s identity.

Have you been charged with bribery of a foreign official or want learn more? Read on: