Steps taken by New Zealand to implement and enforce the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions

(Information as of 1 October 2004)

Date of deposit of instrument of ratification/acceptance or date of accession

The instrument of ratification was deposited with the Secretary-General of the OECD on 25 June 2001. 

Deposit of instrument of ratification/acceptance: 25 June 2001
Entry into force of the Convention: 24 August 2001
Entry into force of implementing legislation: 3 May 2001

Implementing legislation

The Crimes (Bribery of Foreign Public Officials) Amendment Act 2001 contained the New Zealand government’s legislative response to the Convention.  It commenced effect from 3 May 2001.  Key features of the legislation include:

- The creation of a new offence of bribing foreign public officials carrying a maximum penalty of up to 7 years imprisonment – this made it an offence, with narrow exceptions to corruptly give, or agree to give a foreign public official with the intent of influencing them in respect of their official capacity in order to obtain or retain business or obtain an improper advantage in business;

- The maximum penalties for existing domestic offences of bribing judicial officers, Members of Parliament or other public officials were  increased from 5 to 7 years imprisonment;

- The application of extraterritorial jurisdiction to Convention offences enabling prosecutions to be brought for foreign bribery offences committed outside New Zealand by New Zealand citizens, residents, and body corporates or corporations sole incorporated in New Zealand; 

- The creation of a narrow exception to the foreign bribery offence where acts alleged to constitute the offence are committed for the sole or primary purpose of ensuring or expediting the performance of a foreign public official of a routine government action and the value of the benefit is small;

- The term “ routine government action” specifically excludes decisions made by a FPO about whether to award new business; or whether to continue existing business with any particular person or body; or the terms of new business or existing business; or any action that is outside the scope of the ordinary duties of the official;

- An exception to the bribery offence applies where the act alleged to constitute the offence was done outside New Zealand and was not, at the time of its commission, an offence under the laws of the foreign country in which the principal office of the person, organisation, or other body for whom the FPO is employed or otherwise provides services is situated.  Unless the person puts the matter in issue there is a statutory presumption that the act was an offence under the laws of the relevant foreign country.

In 2001, New Zealand underwent a review of its implementation of the Convention by the Working Group, led by a panel of expert examiners.  The Working Group considered that New Zealand’s legislation overall conformed to the requirements of the Convention but noted aspects of it that would require follow up in Phase 2 or further horizontal review.  New Zealand is currently scheduled for an examination under Phase 2 monitoring in October 2006. 

The Group noted, that the absence of a prohibition of tax deductibility of bribes meant New Zealand had not fully implemented the 1997 Revised Recommendation.

Other relevant laws, regulations or decrees that have an impact on a country’s implementation of the OECD Convention or the Recommendations

In 2002, the Government passed the Taxation (Relief, Refunds and Miscellaneous Provisions) Act 2002 that amended section DJ 22 of the Income Tax Act 1994.  This amendment prohibits the tax deductibility of bribes paid in the course of business and applies to bribes paid after 17 October 2002.  This legislative change addressed the issue noted by the Working Group in the course of its review of New Zealand in 2001.

Other Information

Relevant Authorities

Enforcement

New Zealand Police – Office of the Commissioner, PO Box 3017, Wellington, New Zealand Telephone: 0064 4 474 9499, Facsimile: 0064 4 498 7400
Website: www.police.govt.nz

Serious Fraud Office – The Director, Duthie Whyte Building,Cnr Mayoral & Wakefield Streets, Auckland, New Zealand
Telephone: 0064 9 303 0121, Facsimile: 0064 9 303 0142
Website: www.sfo.govt.nz

Policy

The Ministry of Justice, Secretary of Justice, PO Box 180, Wellington, New Zealand
Telephone 0064 4 918 8800, Facsimile: 0064 4 918 8820,
Website: www.justice.govt.nz

Links to relevant legislation

- Crimes Act 1961, sections 105C, 105D and 105E 
- Mutual Assistance in Criminal Matters Act 1992
- Extradition Act 1999
- Proceeds of Crime Act 1991

This legislation can be accessed on line at www.pco.parliament.govt.nz

Signature/ratification of other relevant international instruments

New Zealand signed the United Nations Convention Against Corruption on 9 December 2003 and intends to ratify that Convention once domestic legislation implementing it is in place.  Policy development of these proposals is underway.

Working Group on Bribery Monitoring Reports

Phase 1:  Review of Implementation of the Convention and 1997 Recommendation
http://www.oecd.org/dataoecd/51/62/2088257.pdf

Phase 2:  Report on the Application of the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the 1997 Recommendation on Combating Bribery in International Business Transactions
http://www.oecd.org/dataoecd/57/38/37658136.pdf