	Lex Mundi Global Anti-Corruption Compliance Guide
	New Zealand
	(Asia Pacific) Firm Simpson Grierson Updated 01 Feb 2022
What is the key anti-bribery and corruption legislation in your jurisdiction?	The key legislation is the Crimes Act 1961 ("*Crimes Act"). Part 6* of the Crimes Act criminalizes various acts of bribery and corruption involving New Zealand and foreign officials. Additionally, the Secret Commissions Act 1910 ("Secret Commissions Act") criminalizes corrupt gifting to agents.
Has there been a specific anti-bribery and corruption law enacted in your jurisdiction in the last ten years?	A stand-alone anti-bribery and corruption statute has not been enacted. However, the Organised Crime and Anti-corruption Legislation Bill, passed in November 2015, amended: the *Crimes Act; the Secret Commissions Act; the Mutual Assistance in Criminal Matters Act 1992* so as to accommodate requests for assistance made under the United Nations Convention against Corruption (which New Zealand ratified in December 2015); and other relevant statutes. Despite the lack of recent amendment to the anti-bribery and corruption regulation, it is becoming increasingly common in New Zealand for government departments, local councils and businesses generally to have clear internal policies with regard to the acceptance of gifts by their staff, to reduce the risk of facing a potential accusation of bribery. These policies will vary but tend to be stricter in the public sector when compared to those in the private sector. Some policies can even go as far as prohibiting the receipt of gifts of any sort, even if this would fall well short of any legal concern. Other policies can require the internal disclosure of gifts or entertainment received and their value (in an internal register).
Is a bribe payment to domestic government officials prohibited by the legislation?	Yes. The Crimes Act institutes various offenses, depending on the category of New Zealand officials involved. Categories of Officials The Crimes Act distinguishes between the following categories of officials: “judicial officers” – this term includes a judge of a court (including a District Court judge), a coroner, a Justice of the Peace, a community magistrate, any other person holding any judicial office, and any person who is a member of any tribunal authorized by law to take evidence on oath; Registrars or Deputy Registrars of courts; Ministers of the Crown or members of the Executive Council; Members of Parliament; “law enforcement officers” – this term includes a constable as well as a person employed in the detection, prosecution, or punishment of offenders; and “officials” ("Public Servants) – this term includes a person in the service of the Crown (within or outside New Zealand, and whether honorary or not), a member or employee of a local authority or public body, and a person employed in the education service. The Crimes Act also has a category of “foreign public official”; this is discussed in the answer to "Is a bribe payment to foreign government officials prohibited by the legislation?". Offenses Under the Crimes Act, it is an offense corruptly to give, or offer or agree to give, any bribe to any person (whether to the official concerned or to a third party) with intent to: judicial officers: influence a judicial officer in respect of any act or omission by him or her in his or her judicial capacity; judicial officers, Registrars, and Deputy Registrars: influence a judicial officer or a Registrar or Deputy Registrar of any court in respect of any act or omission by him or her in his or her non-judicial official capacity; Ministers: influence a Minister of the Crown or member of the Executive Council in respect of any act or omission by him or her in his or her capacity as a Minister or member of the Executive Council; Members of Parliament: influence a Member of Parliament in respect of any act or omission by him or her in his or her capacity as a member of Parliament; law enforcement officers: influence a law enforcement officer in respect of any act or omission by him or her in his or her official capacity; or Public Servants: influence a Public Servant in respect of any act or omission by him or her in his or her official capacity. Each of the above is a separate offense. De Minimis Defense The Supreme Court has recognized a de minimis defense for low-value gifts. However, there are no express financial thresholds in the statutes or case law. Based on New Zealand case law, a de minimis defense will be analyzed considering the value of the consideration and the context in which it was offered or given to the official.
Is a bribe payment to foreign government officials prohibited by the legislation?	Yes, if this is done for a specified business purpose (as discussed below). Scope The *Crimes Act* defines a “foreign public official” as a: a member or officer of the executive, judiciary, or legislature of a foreign country; an employee of a foreign government, foreign public agency, foreign public enterprise, or public international organization; or a person acting in the service of (or purporting to act in the service of) a foreign government, foreign public agency, foreign public enterprise, or public international organization. Offense It is an offense corruptly to give, or offer or agree to give, any bribe to any person (whether to the official concerned or to a third party) with intent to influence a foreign public official in respect of any act or omission by that official in his or her official capacity (whether or not the act or omission is within the scope of the official’s authority) in order to: obtain or retain business; or obtain any improper advantage in the conduct of business. De Minimis Exception The *Crimes Act* provides that it is not an offense if: the primary or sole purpose of the act or omission is to ensure that the foreign public official performs a routine government action, or to expedite such performance; and the value of the benefit is small.
Is requesting or accepting a bribe prohibited by the legislation?	Yes. Bribery of New Zealand Officials The Crimes Act provides that it is an offense for any official specified below corruptly to accept or obtain, agree or offer to accept, or attempt to obtain a bribe for himself, herself, or any other person: judicial officers: a judicial officer, in respect of any act done or omitted, or to be done or omitted, by him or her in his or her judicial capacity; judicial officers, Registrars, and Deputy Registrars: a judicial officer, Registrar of a court, or Deputy Registrar of a court, in respect of any act done or omitted, or to be done or omitted, by him or her in his or her non-judicial official capacity; Ministers: a Minister of the Crown or member of the Executive Council, in respect of any act, done or omitted, or to be done or omitted, by him or her in his or her capacity as a Minister or member of the Executive Council; Members of Parliament: a Member of Parliament, in respect of any act done or omitted, or to be done or omitted, by him or her in his or her capacity as a Member of Parliament; law enforcement officers: a law enforcement officer, in respect of any act, done or omitted, or to be done or omitted, by him or her in his or her official capacity; or Public Servant: a Public Servant, in respect of any act, done or omitted, or to be done or omitted, by him or her in his or her official capacity. Unlike the preceding offenses, this offense can be committed not only if the Public Servant engages in the prohibited conduct in New Zealand, but also if he or she does so outside New Zealand. Each of the above is a separate offense. Bribery of Foreign Officials It is an offense if a foreign public official corruptly accepts or obtains, agrees or offers to accept, or attempts to obtain a bribe for that person or for another person in respect of any act or omission by the foreign public official in the foreign public official’s official capacity. This applies where the foreign public official commits the offense in New Zealand. It also applies where the offense is committed outside New Zealand and the foreign public official is a New Zealand citizen, ordinarily resident in New Zealand, or incorporated in New Zealand. These provisions of the *Crimes Act* apply subject to any immunity the foreign public official may have. Corrupt Use of Official Information It is an offense if a Public Servant corruptly uses or discloses any information that he or she acquired in an official capacity in order to obtain an advantage or a pecuniary gain for himself, herself, or any other person. This offense can be committed either in New Zealand or outside New Zealand. Trading in Influence It is an offense if a person corruptly accepts or obtains, agrees or offers to accept, or attempts to obtain a bribe for that person or for another person with the intent to influence a Public Servant in respect of any act or omission by that Public Servant in his or her official capacity. Third-Party Recipients The description of the offenses envisages that the bribe could be received by a third party rather than by the relevant official. In that event, the third party could be liable as: a party to the relevant offense (if the third party aids, abets, incites, counsels, or procures the person actually committing the offense); an accessory after the fact; or a receiver of property obtained by an imprisonable offense. De Minimis Defense The Supreme Court has recognized a de minimis defense for low-value gifts. However, there are no express financial thresholds in the statutes or case law. Based on New Zealand case law, a de minimis defense will be analyzed considering the value of the consideration and the context in which it was offered or given to the official.
Who is subject to the legislation?	Both public officials and private sector agents are subjected to anti-bribery and corruption laws in New Zealand. The public officials are subjected to the *Crimes Act* and the Secret Commission Act and the private sector agents to the Secret Commission Act. Officials See our answer to "Is a bribe payment to domestic government officials prohibited by the legislation?" for the categories of New Zealand officials in respect of whom the Crimes Act’s bribery provisions apply. See our answer to "Is a bribe payment to foreign government officials prohibited by the legislation?" for the classes of foreign public officials in respect of whom the Crimes Act’s bribery provisions apply. Territorial Scope The Crimes Act is subject to territoriality restrictions. Relevantly: The Crimes Act’s prohibitions against requesting or accepting bribes generally apply only where the request or acceptance occurs in New Zealand. Exceptions apply where the relevant official is a Public Servant, in which case the Crimes Act also criminalizes conduct outside New Zealand. The Crimes Act criminalizes all offers or payment of bribes to foreign public officials within New Zealand. However, if such conduct occurs outside New Zealand the offense is committed only if the person who offers or pays the bribe is a New Zealand citizen, ordinarily resident in New Zealand, or a corporation (body corporate or corporation sole) incorporated in New Zealand. The Crimes Act criminalizes all requests for and receipts of bribes by foreign public officials within New Zealand (subject to immunity). However, if such conduct occurs outside New Zealand the offense is committed only if the foreign public official is a New Zealand citizen, ordinarily resident in New Zealand, or incorporated in New Zealand.
Is there criminal liability for corporate entities who have either paid or accepted a bribe payment?	Yes, as discussed below: Application of Bribery Offenses to Corporate Entities Bribery and corruption charges can be brought against both natural and corporate persons. A “person” under the Crimes Act includes both incorporated and unincorporated bodies of persons. Although most of the bribery offenses stipulate the penalty as a term of imprisonment – which could not apply to a corporate entity – the Sentencing Act 2002 ("*Sentencing Act") empowers a court to impose a fine whenever an enactment provides for imprisonment only. Consequently, a corporate entity can be convicted of a bribery offense and can be fined. Attribution of Criminality to a Corporate Entity* In general, it has to be expected that only where very senior levels of management or directors are involved in bribery that a corporate entity might also be charged. To explain: The New Zealand courts had previously tended to follow the English law approach established in Tesco Supermarkets Limited v Nattrass [1972] AC 153 (HL), under which the courts look at whether the natural persons involved in an offense were the “directing mind and will’ of the corporate entity. However, the Privy Council decision in the New Zealand appeal concerning Meridian Global Funds Management Asia v Securities Commission [1995] UKPC 5 has most likely extended the identification theory, such that the court is also encouraged to look at the purpose of the provisions creating the relevant offense. That case involved a regulatory offense where certain investment managers employed by a company were delegated a reporting task, which was not complied with. In that instance, that delegation permitted the court to find the company liable for the non-reporting, by reference to the purpose of the reporting provisions. The knowledge of the employees was attributed to the company due to the general principles of agency and vicarious liability. However, such principles may be difficult to apply to bribery and corruption-type offenses. As such, the “directing mind and will” test most likely remains relevant in this area. However, the Crimes Act makes special provision for a corporate entity to be liable where an ordinary employee offers or pays a bribe to a foreign public official (as discussed in Question 4). It provides that a corporate entity is also criminally liable if: an employee of the corporate entity does an act that would constitute the relevant offense; the employee does the act, in whole or in part, with the intent to benefit the corporate entity; the employee, in doing the act, is acting within the scope of his or her authority as an employee of the corporate entity; and the corporate entity has not taken reasonable steps to prevent the offense (it is presumed, unless the corporate entity puts the matter at issue, that the corporate entity did not take reasonable steps).
What is the penalty for individuals violating the law?	Bribery of New Zealand Officials The penalty for offering or paying a bribe to a New Zealand official is up to seven years’ imprisonment for the person offering or paying a bribe. The penalty for the persons accepting or obtaining, or agreeing or offering to accept a bribe is generally up to seven years’ imprisonment, but it can be up to fourteen years’ imprisonment if those persons are judicial officers, Ministers of the Crown or members of the Executive Council receiving a bribe in respect of any act done or omitted by him or her in his or her capacity. Bribery of Foreign Officials The penalty for offering or paying a bribe to a foreign public official is: imprisonment for up to seven years; a fine of up to NZ$5 million or three times the commercial gain produced by the offense (whichever is greater); or both such imprisonment and such fine. Trading in Influence The penalty for a person who accepts obtains, agrees to accept, offers to accept, or attempts to obtain a bribe for that person or for another person with the intent to influence a Public Servant is up to seven years’ imprisonment.
Assuming corporate entities are liable for violating the legislation, what is the penalty for corporate entities violating the law?	Bribery of New Zealand Officials The prescribed penalty for offering or paying a bribe to a New Zealand official is up to seven years’ imprisonment. While a corporation cannot be imprisoned, a court can substitute a fine under the *Sentencing Act. A court is likely to calculate the fine on the same basis as for where a foreign official is bribed. Bribery of Foreign Officials* The prescribed penalty is a fine of up to: NZ$5 million; or three times the commercial gain produced by the offense, whichever is greater.
Assuming corporate entities are liable for violating the legislation, does having a compliance program designed to prevent bribery constitute a defense?	A corporate entity is not liable for bribery of a foreign public official by one of its employees if it has taken reasonable steps to prevent the offense. An appropriate compliance program could constitute such “reasonable steps”. In other cases, the Crimes Act does not provide that “reasonable steps” is a complete defense to liability.
Assuming corporate entities are liable for violating the anticorruption law, is it possible for a corporate entity to reach a deferred prosecution agreement or leniency agreement with the enforcement authorities?	Deferred Prosecution Agreement A deferred prosecution agreement for bribery is possible in principle, but likely to be rare in practice. Under the Solicitor-General’s Prosecution Guidelines ("Prosecution Guidelines"), prosecutors are expected to prosecute if: there is sufficient evidence to provide a reasonable prospect of conviction; and prosecution is required in the public interest. The Prosecution Guidelines specify that public interest considerations pointing towards prosecution include eg the seriousness of the offense (as judged by the maximum penalty) and an element of corruption. A prosecutor is unlikely to consider the public interest as not requiring a prosecution on a typical bribery charge. Additionally, in certain cases high-level permission is required to bring a charge: Bribery and corruption under the Crimes Act involving judges, judicial officers, law enforcement officers, official information, or foreign public officials cannot be prosecuted without the permission of the Attorney-General. A prosecution against a senior (High Court) judge must also only be pursued if Parliament so resolves. Where a prosecution involves a Minister of the Crown or Member of Parliament, leave of the High Court must be obtained. It would be assumed that if such permission were sought and granted, the ability to later defer a prosecution would be severely constrained. Leniency Agreement From a practical perspective, the answer is no: Where the facts can support only one charge – as for bribery – a prosecutor is unable to effect leniency by prosecuting on a lesser charge (carrying a lesser maximum penalty). The Prosecution Guidelines make it unacceptable for prosecutors to agree to support a specific sentence in exchange for a guilty plea. Further, a court is not restricted to imposing a sentence supported by the prosecution. The sentence that is imposed is a matter for the decision of the court, not for agreement between the prosecution and the defense.

Lex Mundi Global Anti-Corruption Compliance Guide

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What is the key anti-bribery and corruption legislation in your jurisdiction?

The key legislation is the Crimes Act 1961 ("Crimes Act"). Part 6 of the Crimes Act criminalizes various acts of bribery and corruption involving New Zealand and foreign officials.

Additionally, the Secret Commissions Act 1910 ("Secret Commissions Act") criminalizes corrupt gifting to agents.

Has there been a specific anti-bribery and corruption law enacted in your jurisdiction in the last ten years?

A stand-alone anti-bribery and corruption statute has not been enacted.
However, the Organised Crime and Anti-corruption Legislation Bill, passed in November 2015, amended:

the Crimes Act;
the Secret Commissions Act;
the Mutual Assistance in Criminal Matters Act 1992 so as to accommodate requests for assistance made under the United Nations Convention against Corruption (which New Zealand ratified in December 2015); and
other relevant statutes.

Despite the lack of recent amendment to the anti-bribery and corruption regulation, it is becoming increasingly common in New Zealand for government departments, local councils and businesses generally to have clear internal policies with regard to the acceptance of gifts by their staff, to reduce the risk of facing a potential accusation of bribery. These policies will vary but tend to be stricter in the public sector when compared to those in the private sector. Some policies can even go as far as prohibiting the receipt of gifts of any sort, even if this would fall well short of any legal concern. Other policies can require the internal disclosure of gifts or entertainment received and their value (in an internal register).

Is a bribe payment to domestic government officials prohibited by the legislation?

Yes. The Crimes Act institutes various offenses, depending on the category of New Zealand officials involved. Categories of Officials The Crimes Act distinguishes between the following categories of officials:

“judicial officers” – this term includes a judge of a court (including a District Court judge), a coroner, a Justice of the Peace, a community magistrate, any other person holding any judicial office, and any person who is a member of any tribunal authorized by law to take evidence on oath;
Registrars or Deputy Registrars of courts;
Ministers of the Crown or members of the Executive Council;
Members of Parliament;
“law enforcement officers” – this term includes a constable as well as a person employed in the detection, prosecution, or punishment of offenders; and
“officials” ("Public Servants) – this term includes a person in the service of the Crown (within or outside New Zealand, and whether honorary or not), a member or employee of a local authority or public body, and a person employed in the education service.

The Crimes Act also has a category of “foreign public official”; this is discussed in the answer to "Is a bribe payment to foreign government officials prohibited by the legislation?". Offenses Under the Crimes Act, it is an offense corruptly to give, or offer or agree to give, any bribe to any person (whether to the official concerned or to a third party) with intent to:

judicial officers: influence a judicial officer in respect of any act or omission by him or her in his or her judicial capacity;
judicial officers, Registrars, and Deputy Registrars: influence a judicial officer or a Registrar or Deputy Registrar of any court in respect of any act or omission by him or her in his or her non-judicial official capacity;
Ministers: influence a Minister of the Crown or member of the Executive Council in respect of any act or omission by him or her in his or her capacity as a Minister or member of the Executive Council;
Members of Parliament: influence a Member of Parliament in respect of any act or omission by him or her in his or her capacity as a member of Parliament;
law enforcement officers: influence a law enforcement officer in respect of any act or omission by him or her in his or her official capacity; or
Public Servants: influence a Public Servant in respect of any act or omission by him or her in his or her official capacity.

Each of the above is a separate offense.

De Minimis Defense

The Supreme Court has recognized a de minimis defense for low-value gifts. However, there are no express financial thresholds in the statutes or case law. Based on New Zealand case law, a de minimis defense will be analyzed considering the value of the consideration and the context in which it was offered or given to the official.

Is a bribe payment to foreign government officials prohibited by the legislation?

Yes, if this is done for a specified business purpose (as discussed below).

Scope

The Crimes Act defines a “foreign public official” as a:

a member or officer of the executive, judiciary, or legislature of a foreign country;
an employee of a foreign government, foreign public agency, foreign public enterprise, or public international organization; or
a person acting in the service of (or purporting to act in the service of) a foreign government, foreign public agency, foreign public enterprise, or public international organization.

Offense

It is an offense corruptly to give, or offer or agree to give, any bribe to any person (whether to the official concerned or to a third party) with intent to influence a foreign public official in respect of any act or omission by that official in his or her official capacity (whether or not the act or omission is within the scope of the official’s authority) in order to:

obtain or retain business; or
obtain any improper advantage in the conduct of business.

De Minimis Exception

The Crimes Act provides that it is not an offense if:

the primary or sole purpose of the act or omission is to ensure that the foreign public official performs a routine government action, or to expedite such performance; and
the value of the benefit is small.

Is requesting or accepting a bribe prohibited by the legislation?

Yes.

Bribery of New Zealand Officials

The Crimes Act provides that it is an offense for any official specified below corruptly to accept or obtain, agree or offer to accept, or attempt to obtain a bribe for himself, herself, or any other person:

judicial officers: a judicial officer, in respect of any act done or omitted, or to be done or omitted, by him or her in his or her judicial capacity;
judicial officers, Registrars, and Deputy Registrars: a judicial officer, Registrar of a court, or Deputy Registrar of a court, in respect of any act done or omitted, or to be done or omitted, by him or her in his or her non-judicial official capacity;
Ministers: a Minister of the Crown or member of the Executive Council, in respect of any act, done or omitted, or to be done or omitted, by him or her in his or her capacity as a Minister or member of the Executive Council;
Members of Parliament: a Member of Parliament, in respect of any act done or omitted, or to be done or omitted, by him or her in his or her capacity as a Member of Parliament;
law enforcement officers: a law enforcement officer, in respect of any act, done or omitted, or to be done or omitted, by him or her in his or her official capacity; or
Public Servant: a Public Servant, in respect of any act, done or omitted, or to be done or omitted, by him or her in his or her official capacity. Unlike the preceding offenses, this offense can be committed not only if the Public Servant engages in the prohibited conduct in New Zealand, but also if he or she does so outside New Zealand.

Each of the above is a separate offense.

Bribery of Foreign Officials

It is an offense if a foreign public official corruptly accepts or obtains, agrees or offers to accept, or attempts to obtain a bribe for that person or for another person in respect of any act or omission by the foreign public official in the foreign public official’s official capacity. This applies where the foreign public official commits the offense in New Zealand. It also applies where the offense is committed outside New Zealand and the foreign public official is a New Zealand citizen, ordinarily resident in New Zealand, or incorporated in New Zealand.

These provisions of the Crimes Act apply subject to any immunity the foreign public official may have.

Corrupt Use of Official Information

It is an offense if a Public Servant corruptly uses or discloses any information that he or she acquired in an official capacity in order to obtain an advantage or a pecuniary gain for himself, herself, or any other person.

This offense can be committed either in New Zealand or outside New Zealand.

Trading in Influence

It is an offense if a person corruptly accepts or obtains, agrees or offers to accept, or attempts to obtain a bribe for that person or for another person with the intent to influence a Public Servant in respect of any act or omission by that Public Servant in his or her official capacity.

Third-Party Recipients

The description of the offenses envisages that the bribe could be received by a third party rather than by the relevant official. In that event, the third party could be liable as:

a party to the relevant offense (if the third party aids, abets, incites, counsels, or procures the person actually committing the offense);
an accessory after the fact; or
a receiver of property obtained by an imprisonable offense.

De Minimis Defense

Who is subject to the legislation?

Both public officials and private sector agents are subjected to anti-bribery and corruption laws in New Zealand. The public officials are subjected to the Crimes Act and the Secret Commission Act and the private sector agents to the Secret Commission Act.

Officials

See our answer to "Is a bribe payment to domestic government officials prohibited by the legislation?" for the categories of New Zealand officials in respect of whom the Crimes Act’s bribery provisions apply.
See our answer to "Is a bribe payment to foreign government officials prohibited by the legislation?" for the classes of foreign public officials in respect of whom the Crimes Act’s bribery provisions apply.

Territorial Scope

The Crimes Act is subject to territoriality restrictions. Relevantly:

The Crimes Act’s prohibitions against requesting or accepting bribes generally apply only where the request or acceptance occurs in New Zealand. Exceptions apply where the relevant official is a Public Servant, in which case the Crimes Act also criminalizes conduct outside New Zealand.
The Crimes Act criminalizes all offers or payment of bribes to foreign public officials within New Zealand. However, if such conduct occurs outside New Zealand the offense is committed only if the person who offers or pays the bribe is a New Zealand citizen, ordinarily resident in New Zealand, or a corporation (body corporate or corporation sole) incorporated in New Zealand.
The Crimes Act criminalizes all requests for and receipts of bribes by foreign public officials within New Zealand (subject to immunity). However, if such conduct occurs outside New Zealand the offense is committed only if the foreign public official is a New Zealand citizen, ordinarily resident in New Zealand, or incorporated in New Zealand.

Is there criminal liability for corporate entities who have either paid or accepted a bribe payment?

Yes, as discussed below:

Application of Bribery Offenses to Corporate Entities

Bribery and corruption charges can be brought against both natural and corporate persons. A “person” under the Crimes Act includes both incorporated and unincorporated bodies of persons.

Although most of the bribery offenses stipulate the penalty as a term of imprisonment – which could not apply to a corporate entity – the Sentencing Act 2002 ("Sentencing Act") empowers a court to impose a fine whenever an enactment provides for imprisonment only.

Consequently, a corporate entity can be convicted of a bribery offense and can be fined.

Attribution of Criminality to a Corporate Entity

In general, it has to be expected that only where very senior levels of management or directors are involved in bribery that a corporate entity might also be charged. To explain: The New Zealand courts had previously tended to follow the English law approach established in Tesco Supermarkets Limited v Nattrass [1972] AC 153 (HL), under which the courts look at whether the natural persons involved in an offense were the “directing mind and will’ of the corporate entity. However, the Privy Council decision in the New Zealand appeal concerning Meridian Global Funds Management Asia v Securities Commission [1995] UKPC 5 has most likely extended the identification theory, such that the court is also encouraged to look at the purpose of the provisions creating the relevant offense. That case involved a regulatory offense where certain investment managers employed by a company were delegated a reporting task, which was not complied with. In that instance, that delegation permitted the court to find the company liable for the non-reporting, by reference to the purpose of the reporting provisions. The knowledge of the employees was attributed to the company due to the general principles of agency and vicarious liability. However, such principles may be difficult to apply to bribery and corruption-type offenses. As such, the “directing mind and will” test most likely remains relevant in this area.

However, the Crimes Act makes special provision for a corporate entity to be liable where an ordinary employee offers or pays a bribe to a foreign public official (as discussed in Question 4). It provides that a corporate entity is also criminally liable if:

an employee of the corporate entity does an act that would constitute the relevant offense;
the employee does the act, in whole or in part, with the intent to benefit the corporate entity;
the employee, in doing the act, is acting within the scope of his or her authority as an employee of the corporate entity; and
the corporate entity has not taken reasonable steps to prevent the offense (it is presumed, unless the corporate entity puts the matter at issue, that the corporate entity did not take reasonable steps).

What is the penalty for individuals violating the law?

Bribery of New Zealand Officials

The penalty for offering or paying a bribe to a New Zealand official is up to seven years’ imprisonment for the person offering or paying a bribe. The penalty for the persons accepting or obtaining, or agreeing or offering to accept a bribe is generally up to seven years’ imprisonment, but it can be up to fourteen years’ imprisonment if those persons are judicial officers, Ministers of the Crown or members of the Executive Council receiving a bribe in respect of any act done or omitted by him or her in his or her capacity.

Bribery of Foreign Officials

The penalty for offering or paying a bribe to a foreign public official is:

imprisonment for up to seven years;
a fine of up to NZ$5 million or three times the commercial gain produced by the offense (whichever is greater); or
both such imprisonment and such fine.

Trading in Influence

The penalty for a person who accepts obtains, agrees to accept, offers to accept, or attempts to obtain a bribe for that person or for another person with the intent to influence a Public Servant is up to seven years’ imprisonment.

Assuming corporate entities are liable for violating the legislation, what is the penalty for corporate entities violating the law?

Bribery of New Zealand Officials The prescribed penalty for offering or paying a bribe to a New Zealand official is up to seven years’ imprisonment. While a corporation cannot be imprisoned, a court can substitute a fine under the Sentencing Act. A court is likely to calculate the fine on the same basis as for where a foreign official is bribed. Bribery of Foreign Officials The prescribed penalty is a fine of up to:

NZ$5 million; or
three times the commercial gain produced by the offense,

whichever is greater.

Assuming corporate entities are liable for violating the legislation, does having a compliance program designed to prevent bribery constitute a defense?

A corporate entity is not liable for bribery of a foreign public official by one of its employees if it has taken reasonable steps to prevent the offense. An appropriate compliance program could constitute such “reasonable steps”.

In other cases, the Crimes Act does not provide that “reasonable steps” is a complete defense to liability.

Assuming corporate entities are liable for violating the anticorruption law, is it possible for a corporate entity to reach a deferred prosecution agreement or leniency agreement with the enforcement authorities?

Deferred Prosecution Agreement

A deferred prosecution agreement for bribery is possible in principle, but likely to be rare in practice.

Under the Solicitor-General’s Prosecution Guidelines ("Prosecution Guidelines"), prosecutors are expected to prosecute if:

there is sufficient evidence to provide a reasonable prospect of conviction; and
prosecution is required in the public interest.

The Prosecution Guidelines specify that public interest considerations pointing towards prosecution include eg the seriousness of the offense (as judged by the maximum penalty) and an element of corruption. A prosecutor is unlikely to consider the public interest as not requiring a prosecution on a typical bribery charge.

Additionally, in certain cases high-level permission is required to bring a charge:

Bribery and corruption under the Crimes Act involving judges, judicial officers, law enforcement officers, official information, or foreign public officials cannot be prosecuted without the permission of the Attorney-General. A prosecution against a senior (High Court) judge must also only be pursued if Parliament so resolves.
Where a prosecution involves a Minister of the Crown or Member of Parliament, leave of the High Court must be obtained.

It would be assumed that if such permission were sought and granted, the ability to later defer a prosecution would be severely constrained.

Leniency Agreement

From a practical perspective, the answer is no:

Where the facts can support only one charge – as for bribery – a prosecutor is unable to effect leniency by prosecuting on a lesser charge (carrying a lesser maximum penalty).
The Prosecution Guidelines make it unacceptable for prosecutors to agree to support a specific sentence in exchange for a guilty plea. Further, a court is not restricted to imposing a sentence supported by the prosecution. The sentence that is imposed is a matter for the decision of the court, not for agreement between the prosecution and the defense.

Lex Mundi Global Anti-Corruption Compliance Guide

New Zealand

Lex Mundi Global Anti-Corruption Compliance Guide

New Zealand

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