Section 536D — Fair Work Act 2009: 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.