Anti-Corruption Risk Map - Papua New Guinea

By Mathieu Hanaut (Baker McKenzie Sydney)

Primary foreign anti-bribery legislation and enforcement agencies

Criminal Code Act 1974

National Agriculture Quarantine Inspection Authority Act 1997

Quarantine Act 1953

Liquor (Licensing) Act 1963

Customs Act 1951

Excise Act 1956

Food Sanitation Act 1991

Public Health Act 1973

Forestry Act 1991

Investigating agency: Royal Papua New Guinea Constabulary, Public Prosecutor and The National Court

Offences

Criminal Code Act 1974 Section 61

It is a crime for a member of Parliament to ask, receive or obtain or agree or attempt to receive or obtain, any property or benefit for himself or any other person on any understanding that his vote, opinion, judgment, or action in the Parliament, or any Committee of the Parliament will be influenced by it or be given in any particular manner in favor of any particular side of any question or matter

Defense

None of the defences provided under the Act specifically target these provisions.

Apart from the general defence under Section 12 for the territorial application of the code (where it is a defence to the charge to prove that the accused person did not intend that the act or omission should have effect in Papua New Guinea), none of the defences provided under the Act specifically target these provisions on bribery.

Criminal Code Act 1974 Section 62

A person is guilty of a crime if he/she:

a) in order-

i) to influence a member of parliament in his vote, opinion, judgement or action on any question or matter arising iin the Parliament or in any Committee of the Parliament, or;

ii) to induce a member to absent himself from the Parliament or from a Committee of Parliament, give, confer or procure, or promise or offer to give or confer or to procure or attempt to procure, any property or benefit to, on or for the member, or to, on, or for, any person, or;

b) attempts, directly or indirectly, by fraud, threats or intimidation of any kind, to influence a member of the Parliament in his vote, opinion, judgement or action on any such question or matter, or to induce him to so absent himself.

Criminal Code Act 1974 Section 87

It is a crime for a person to corruptly give, confer or procure, or promise or offer to give or confer, or to procure or attempt to procure, to, on or for any person, any property or benefit on account of any such act or omission on the part of a person in the Public Service or holding a public office.

Criminal Code Act 1974 Section 97A

A person is guilty of an offence if he/she—(a) with intent to obtain a contract from, or provide a service to, a public body, offers a gratification to another person, to induce that person to refrain from making a tender or withdraw or alter a tender; or (b) solicits or accepts a gratification as an inducement or reward for refraining from making a tender or withdrawing or altering a tender made for such contract.

Criminal Code Act 1974 Section 97B

It is an offence for a person who offers to a person employed in the Public Service, to solicit or accept a gratification as an inducement or reward for-

a) the person employed in the Public Service voting or abstaining from voting at any meeting in favor of or against any measure, or;
b) the person employed in the Public Service performing or aiding in procuring or hindering the performance of an official act, or;
c) the person employed in the Public Service aiding in procuring or preventing the passing of any vote or granting of any contract in favor of any person, or;
d) the person employed in the Public Service showing or refraining from showing any favor or disfavor in his capacity as a person employed in the Public Service.

Criminal Code Act 1974 Section 97B (2)

A person is guilty of an offence if he/she corruptly gives or offers to an agent a valuable consideration–(a) as an inducement or reward for or otherwise on account of the agent doing or forbearing to do, or having done or forborne to do, any act in relation to the affairs or business of the principal of the agent; or (b) the receipt or any expectation of which would in any way tend to influence the agent to show, or to forbear to show, favor or disfavor to a person in relation to the affairs or business of the principal of the agent.

Criminal Code Act 1974 Section 101

It is an offence for a person to, before, during or after an election, corruptly provide, or corruptly pay in whole or part the expense of providing, any food, drink or lodging to or for any person on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at the election in the capacity of an elector, is guilty of a misdemeanour.

Defense

To prove that the accused person did not intend that the act should have effect in Papua New Guinea (section 12).

Criminal Code Act 1974 Section 103

A person is guilty of a misdemeanour if he or she:

a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on or for, any person any property or benefit of any kind-

i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector, or;

ii) on account of any person acting or joining in a procession during an election, or;

iii) in order to induce any person to endeavor to procure the return of any person at an election, or the vote of any elector at an election, or;

b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector, or;

c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property, or benefit for himself or any other person on account of promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election, or;

d) advances or pays money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a) (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose, or;

(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election, or;

(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit, or;

(g) is a candidate at an election and he/she convenes or holds a meeting of electors or of their committee in a house licensed for the sale of fermented or spirituous liquors.

Defense

To prove that the accused person did not intend that the act should have effect in Papua New Guinea (section 12).

Section 549 of the Act on CORRUPT PRACTICES provides that:

If, on the trial of a person charged with an indictable offence relating to elections the evidence establishes that he–

(a) is not guilty of the offence charged; and

(b) is guilty of an offence relating to elections and punishable on summary conviction,

he may be convicted of the last-mentioned offence, and is liable to the same punishment as if he had been summarily convicted of that offence.

Criminal Code Act 1974 Section 117 (b)

Corruptly giving, conferring or procuring, or promising or offering to give or confer, or to procure or attempt to procure, to, on, or for any person any property or benefit on account of any such act or omission.

Criminal Code Act 1974 Section 119

Corruptly giving, conferring or procuring, or promising or offering to give or confer, or to procure or attempt to procure, to, on or for any person, any property or benefit on account of any such act or omission on the part of a person holding the judicial office.

Direction to investigate and prosecute a breach of this provision must be given by the Public Prosecutor.

Criminal Code Act 1974 Section 120

Corruptly giving, conferring or procuring, or promising or offering to give or confer, or to procure or attempt to procure, to, on or for any person, any property or benefit on account of any such act or omission on the part of the justice or so employed.

Criminal Code Act 1974 Section 123

A person is guilty of a crime if he/she – (a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, any property or benefit to, on, or for any person, on an agreement or understanding that any person called or to be called as a witness in any judicial proceedings will give false testimony or withhold true testimony; or (b) attempts by any other means to induce a person called or to be called as a witness in any judicial proceedings to give false testimony or to withhold true testimony, or (c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on an agreement or understanding that any person will as a witness in any judicial proceeding give false testimony or withhold true testimony.

Criminal Code Act 1974 Section 412

A person is guilty of a crime if he/she corruptly–(a) receives or obtains; or(b) agrees to receive or obtain,any property or benefit on an agreement or understanding that he will help any person to recover any thing that has been obtained by means of–(c) any act constituting an indictable offence; or(d) any act done at a place outside Papua New Guinea that–(i) if it had been done in Papua New Guinea would have constituted an indictable offence; and (ii) is an offence under the laws in force in the place where it was done, is, unless he has used all due diligence to cause the offender to be brought to trial for the offence.

Criminal Code Act 1974 Corrupt and Improper Practices at Elections (Division 3 – Section 98 – 116)

Corrupt and Improper Practises at Elections under this Division include:

Personation – Section 99;
Double Voting – Section 100;
Treating –Section 101 (refer to full provision below);
Undue Influence – Section 102;
Bribery – Section 103 (refer to Part 1 above for full provision);
Illegal Practises – Section 105;
Other Illegal Practises- Section 106;
Interference at Elections – Section 108;
Electors attempting to violate secrecy of ballot, etc. – Section 109;
Stuffing ballot boxes – Section 110;
Offences by presiding officers at elections – Section 111;
False answers to questions at elections – Section 112;
Interfering with secrecy at elections – Section 113;
Breaking seal of packets used at elections – Section 114;
Offences at elections when voting is by post. – Section 115; and
False electoral claims- Section 116.

Defense

A person shall not be convicted of an offense on the uncorroborated testimony of one witness.

National Agriculture Quarantine Inspection Authority Act 1997 Section 91

A person is guilty of an offence if he/she– (a) gives, or offers or promises to give or procure to be given, a bribe , recompense or reward to an officer, to induce him in any way to neglect or not to perform his duty; or (b) makes a collusive agreement with an officer to neglect or not to perform his duty; or (c) by threats, demands or promises, attempts to influence improperly an officer in the performance of his duty; or (d) assaults or by force, molests, obstructs or intimidates an officer in the performance of his duty.

Quarantine Act 1953, Section 84

A person is guilty of an offence if he/she– (a) gives, or offers or promises to give or procure to be given, a bribe , recompense or reward to an officer, to induce him in any way to neglect or not to perform his duty; or (b) makes a collusive agreement with an officer to neglect or not to perform his duty; or (c) by threats, demands or promises, attempts to influence improperly an officer in the performance of his duty; or (d) assaults or by force, molests, obstructs or intimidates an officer in the performance of his duty.

Liquor (Licensing) Act 1963, Section 115

It is an offence for a licensee or the holder of a permit, or an applicant for a licence or permit under this Act, to–(a) improperly give, offer or promise to give a fee, perquisite, gratuity or reward to–(i) an Inspector or other person having duties or functions under this Act; or (ii) a member of the Police Force; or (b) bribe or attempt to bribe an Inspector or a member of the Police Force; or (c) give or offer to give money or any other valuable thing, or to lend or offer to lend money– (i) to an Inspector or other person having duties or functions under this Act; or (ii) a member of the Police Force.

Customs Act 1951, Section 154

A person is guilty of an offence if he/she–(a) gives or procures to be given, or offers or promises to give or procure to be given, any bribe , recompense or reward to an officer to induce him to neglect his duty; or (b) makes a collusive agreement with an officer to induce him to neglect his duty; or (c) attempts by threats, demands or promises to influence an officer in the discharge of his duty.

Excise Act 1956, Section 73

A person is guilty of an offence if he/she–(a) gives or procures to be given, or offers or promises to give or to procure to be given, a bribe , recompense or reward to an officer to induce him to neglect his duty; or (b) makes a collusive agreement with an officer to induce him to neglect his duty; or (c) attempts by threats, demands or promises to influence an officer in the discharge of his duty.

Food Sanitation Act 1991, Section 40

A person is guilty of an offence if he/she– (a)assaults, intimidates, obstructs or attempts to obstruct in any manner an inspector or an analyst in the exercise of his powers or the discharge of his duties under this Act; or (b) refuses to allow a sample demanded in accordance with this Act to be taken; or (c) gives, procures, offers or promises a bribe , recompense or reward to influence an inspector or an analyst in the exercise of his powers or the discharge of his duties under this Act; or (d) retakes or attempts to retake any food or article seized or sold under this Act, or resists or attempts to present any such seizure.

Public Health Act 1973, Section 12

It is an offence for a person to–(a) give, offer or procure (to be given to an officer or person) a bribe , recompense or reward to induce him in any way to neglect or not to perform his duty under this Act; or (b) make a collusive agreement with an officer or person to neglect or not to perform his duty under this Act; or (c) by threat, demand or promise, attempt improperly to influence a person in the performance of his duty under this Act; or (d) assault, intimidate or by force molest or obstruct a person in the performance of his duty under this Act.

National Housing Corporation Act, Section 67

A “bribe” includes the giving, conferring or procuring of any property or benefit of any kind in respect of– (a) any act done or to be done; or (b) any forbearance observed or to be observed; or (c) any favour or disfavour shown or to be shown, in relation to the affairs or business or the Corporation or to any matter under this Act.
A person is guilty of an offence if he/she bribes or attempts to bribe a member, officer or employee of the Corporation.

Forestry Act 1991, Section 112 (f)

A person is guilty of an offence if he/she (f) for the purpose of obtaining– (i) a favourable report, recommendation, certificate, valuation or royalty assessment, whether in respect of any place, employment, sale, auction, timber permit, timber authority, licence, lease or any other benefit; or (ii) any abstention on the part of a Forest Officer or Forest Inspector or any member of the National Forest Service from any act which forms part of his duties, exercises compulsion on a Forest Officer or a Forest Inspector or any member of the National Forest Service by violence or threats, or corrupts or attempts to corrupt him by promises, offers, gifts or presents.

Penalties – Criminal or Civil liability

Below are the penalties when committing an offence under Criminal Code Act 1974

Section 61 – Imprisonment for a term not exceeding seven years
Section 62 – Imprisonment for a term not exceeding seven years
Section 87 – A fine at the discretion of the Court or Imprisonment for a term up to seven years, or both.
Section 97A – A fine at the discretion of the Court or Imprisonment for a term up to seven years, or both.
Section 97B – A fine not exceeding K400.00 or imprisonment for up to one year
Section 101 – A fine not exceeding K400.00 or imprisonment for up to one year
Section 103 – A fine at the discretion of the Court or imprisonment for up to seven years, or both.

Section 104 provides further penalties for CORRUPT PRACTICES.

(1) A person convicted of an offence against Section 99, 100, 101, 102 or 103 committed with respect to a parliamentary election becomes incapable, for three years from the date of the conviction–

(a) of being registered as an elector or of voting at any parliamentary election or of holding any judicial office, and if he holds any such office the office is vacated; or

(b) being elected or appointed to or of sitting in the Parliament, and, if at the time of the conviction he is a member of the Parliament his seat is vacated.

(2) Any person convicted of any offence referred to in Subsection (1) committed with respect to a Local-level Government election becomes incapable, for two years from the date of the conviction, of holding any local government office, and, if he holds any such office, the office is vacated.

Corrupt And Improper Practices During Elections

Personation – Section 99– Imprisonment for a term not exceeding two years.
Double Voting – Section 100 –Imprisonment for a term not exceeding two years.
Treating –Section 101; A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.
Undue Influence – Section 102 – A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.
Bribery – Section 103 (refer to Part 1 above for full provision)
Illegal Practises – Section 105 –A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

Also, Section 105 (2) provides that if an offence under Subsection (1) was committed with respect to a parliamentary election, the offender also becomes incapable, for two years from the date of the conviction—

a) of being registered as an elector for the electorate for which the election with reference to which the offence was committed was held; and

b) of voting at any election held for that electorate.

Furthermore, Organic Law on National and Local-level Government Elections – Section 215– Voiding election for illegal practices, if the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

Other Illegal Practises- Section 106 – A fine not exceeding K200.00.

Interference at Elections – Section 108 –Imprisonment for a term not exceeding three years.
Electors attempting to violate secrecy of ballot, etc. – Section 109 (1) and (2) –Section 109 (1) : Imprisonment for a term not exceeding three years. Section 109 (2): Imprisonment for a term not exceeding three years.
Stuffing ballot boxes – Section 110 –Imprisonment for a term not exceeding seven years.
Offences by presiding officers at elections – Section 111 –Imprisonment for a term not exceeding three years.
False answers to questions at elections – Section 112 –Imprisonment for a term not exceeding seven years.
Interfering with secrecy at elections – Section 113 – Imprisonment for a term not exceeding two years.
Breaking seal of packets used at elections – Section 114 –Imprisonment for a term not exceeding two years.
Offences at elections when voting is by post. – Section 115 –A fine not exceeding K400.00, or imprisonment for a term not exceeding one year.
False electoral claims- Section 116 –Imprisonment for a term not exceeding seven years.

Section 119 – Imprisonment for up to 14 years, and a fine at the discretion of the court, unless the offence is committed with respect to an arbitrator or umpire the longest term of imprisonment that may be imposed for an offence against Subsection (2) [for Judicial Corruption] is seven years.
Section 117 (b) – Imprisonment for a term not exceeding three years, and a fine at the discretion of the court.
Section 120 – Imprisonment for up to 14 years, and a fine at the discretion of the court
Section 123 – Imprisonment for a term not exceeding seven years
Section 412 – Imprisonment for a term not exceeding seven years

Penalties for Special Laws

National Agriculture Quarantine Inspection Authority Act Section 91 – On summary conviction–a fine not exceeding K4, 000.00 or imprisonment for a term not exceeding six months, or both. However, if on conviction on indictment then the penalty is imprisonment for a term not exceeding three years.
Quarantine Act 1953 Section 84 – On summary conviction–a fine not exceeding K200.00 or imprisonment for a term not exceeding six months, or both. However, if on conviction on indictment–imprisonment for a term not exceeding three years.
Liquor (Licensing) Act 1963 Section 115 – A fine not exceeding K500.00.
Customs Act 1951 Section 154 – Imprisonment for a term not exceeding five years.
Excise Act 1956 Section 73 – Subject to Division IX. 3, imprisonment for a term not exceeding five years.
Food Sanitation Act 1991 Section 40 – A fine not exceeding K2,000.00 or imprisonment for a term not exceeding six months
Public Health Act 1973 Section 12 – A fine not exceeding K200.00 or imprisonment for a term not exceeding six months, or both.

National Housing Corporation Act 1990 Section 67 – Imprisonment for a term not exceeding two years.