Criminal Code Act 1995

In a prosecution for an offence against section 70.2, the determination of whether influence is improper is a matter for the trier of fact.

In determining whether influence is improper for the purposes of paragraph 70.2(1)(b), a trier of fact must disregard the following:

the fact that the benefit, or the offer or promise to provide the benefit, may be, or be perceived to be, customary, necessary or required in the situation;

any official tolerance of the benefit;

if particular business or a particular business or personal advantage is relevant to proving the matters referred to in that paragraph—the following:

if the value of the business or advantage is insignificant—that fact;

in the case of an advantage—any official tolerance of the advantage;

in the case of an advantage—the fact that the advantage may be customary, or perceived to be customary, in the situation.

In determining whether influence is improper for the purposes of paragraph 70.2(1)(b), a trier of fact may have regard to the following:

the recipient or intended recipient of the benefit;

the nature of the benefit;

the manner of the provision of the benefit (or, if applicable, the offered or promised manner of the provision of the benefit);

whether the value of the benefit is disproportionate to the value of any consideration provided or purported to have been provided for the benefit;

if the benefit was provided, or the offer or promise to provide the benefit was made, in the absence of any legal obligation to do so—that fact;

whether the benefit was provided, or the offer or promise to provide the benefit was made, dishonestly;

whether, and to what extent, the provision of the benefit, or the offer or promise to provide the benefit, is recorded or documented;

if the provision of the benefit, or the offer or promise to provide the benefit, is recorded or documented:

the accuracy of the record or documentation; and

whether the record or documentation is consistent with the ordinary practices of the person who made the record or documentation;

whether there is evidence that due diligence was exercised by the first‑mentioned person in section 70.2 in relation to the benefit, or the offer or promise to provide the benefit;

whether any of the following conduct is contrary to a written law in force in the place where that conduct occurs:

the provision of the benefit, or the offer or promise to provide the benefit;

the acceptance of the benefit;

any conduct directly connected with conduct referred to in subparagraph (i) or (ii);

if particular business or a particular business or personal advantage is relevant to proving the matters referred to in that paragraph—the following:

whether the business or advantage was awarded on a competitive or non‑commercial basis;

whether there is any demonstrable conflict of interest in the provision of the business or advantage.

To avoid doubt, subsection (3) does not limit the matters to which the trier of fact may have regard.