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Secret Commissions Act 1975

CONSOLIDATED ACTS OF SAMOA 2009

SECRET COMMISSIONS ACT 1975

Arrangement of Provisions

TITLE

1. Short title
2. Interpretation
3. Persons deemed to be agents within the meaning of this Act
4. Corrupt gift to agent without consent of principal an offence
5. Acceptance of such gifts by agent an offence
6. Duty of agent to disclose pecuniary interest in contract
7. Giving false receipt, invoice, etc., to agent an offence
8. Delivery of false receipt, etc., to principal an offence
9. Receiving secret reward for procuring contracts an offence
10. Aiding and abetting offences
11. Offences by persons acting on behalf of agents
12. Except as provided in this section, customary nature of gift to be no defence
13. Consent of Attorney-General necessary for prosecution
14. Penalty on conviction
15. Incriminating answers and discovery

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THE SECRET COMMISSIONS ACT 1975
1975 No. 6

AN ACT for the prohibition of secret commissions.

(11 August 1975)
[Commencement date: 11 August 1975]

1. Short title - This Act may be cited as the Secret Commissions Act 1975.

2. Interpretation - In this Act, unless the context otherwise requires:

"Agent" includes any person who is or has been, or desires or intends to be, employed by or acting for any other person, whether as agent, servant, broker, auctioneer, architect, solicitor, director, or in any other capacity whatever, either alone or jointly with any other person.

"Consideration" means valuable consideration of any kind; and particularly includes discounts, commissions, rebates, bonuses, deductions, percentages, employment, payment of money (whether by way of loan, gift, or otherwise howsoever), and forbearance to demand any money or valuable thing.

"Principal" includes any person by whom an agent is or has been, or intends or desires to be, employed, or for whom an agent acts or has acted, or intends or desires to act.

3. Persons deemed to be agents within the meaning of this Act - (1) For the purposes of this Act:

(a) Every officer of a corporation and every member of a governing body of a corporation shall be deemed to be an agent of the corporation;

(b) Every officer or member of any Board, Council, Commission, Committee, or other body of persons, whether incorporated or unincorporated, charged by statute with any public functions shall be deemed to be an agent of that Board, Council, Commission, Committee, or other body;

(c) Every person in the service of the Government, or acting for or on behalf of the Government, or holding any office in the Public Service, shall be deemed to be an agent of the Government;

(d) Every partner in a firm shall be deemed to be an agent of the firm;

(e) An executor, administrator, or trustee under a will, intestacy or trust shall be deemed to be an agent of the beneficiaries thereunder;

(f) The administrator or committee of the estate of a mentally defective person shall be deemed to be the agent of that person;

(g) An arbitrator, umpire, or valuer shall be deemed to be an agent of every party to the arbitration or valuation;

(h) A liquidator of a company shall be deemed to be an agent of the company.

(2) If by virtue of the provisions of this Act any agent is deemed to be the agent of two or more principals in respect of the same matter, this Act shall apply to each of those principals in the same manner as if he or she was the sole principal.

(3) Nothing in this section shall be so construed as to restrict in any manner the meaning of the terms "agent" or "principal" as used in this Act.

4. Corrupt gift to agent without consent of principal an offence - (1) Every person is guilty of an offence who corruptly gives, or agrees or offers to give, to any agent, without the consent of his or her principal, any gift or other consideration as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any act in relation to the principal's affairs or business (whether such act is within the scope of the agent's authority or the course of his or her employment as agent or not), or for showing or having shown favour or disfavour to any person in relation to the principal's affairs or business.

(2) Any gift or other consideration given or offered or agreed to be given to any parent, husband, wife, or child of any agent, or to his or her partner, clerk, or servant, or (at the agent's request or suggestion) to any other person, shall be deemed for the purposes of this section to have been given or offered or agreed to be given to the agent.

5. Acceptance of such gifts by agent an offence - (1) Every agent is guilty of an offence who corruptly accepts or obtains, or agrees or offers to accept or attempts to obtain, or solicits from any person, for himself or herself or for any other person, without the consent of his or her principal, any gift or other consideration as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any act in relation to the principal's affairs or business (whether such act is within the scope of the agent's authority or the course of his or her employment as agent or not), or for showing or having shown favour or disfavour to any person in relation to the principal's affairs or business.

(2) Every agent who diverts, obstructs, or interferes with the proper course of the affairs or business of his or her principal, or fails to use due diligence in the prosecution of such affairs or business, with intent to obtain for himself or herself or for any other person any gift or other consideration from any person interested in such affairs or business, shall be deemed to have corruptly solicited a consideration within the meaning of this section.

6. Duty of agent to disclose pecuniary interest in contract - (1) Every agent is guilty of an offence who makes a contract on behalf of his or her principal and fails to disclose to his or her principal, at the time of making the contract or as soon as possible thereafter, the existence of any pecuniary interest which the agent has in the making of the contract, unless to the knowledge of the agent the existence of such pecuniary interest is already known to his or her principal.

(2) For the purposes of this section any pecuniary interest which a parent, husband, wife, child, or partner of the agent has in the making of the contract shall be deemed to be the pecuniary interest of the agent, unless he or she proves that he or she had no knowledge of that interest at the time he or she made the contract.

(3) For the purposes of this section an agent shall not be deemed to have any pecuniary interest in the making of a contract by reason merely of the fact that he or she or any person mentioned in subsection (2) is a shareholder in an incorporated company having more than 20 members.

7. Giving false receipt, invoice, etc., to agent an offence - Every person is guilty of an offence who with intent to deceive the principal, gives to any agent, or signs or otherwise authenticates for the use of any agent, any receipt, invoice, account, or other document of any nature whatsoever in relation to the affairs or business of the agent or his or her principal which contains any statement which is false, defective, or misleading in any material particular, or which omits to state explicitly and fully the fact of any commission, percentage, bonus, discount, rebate, repayment, gratuity, or deduction having been made, given, or allowed, or agreed to be made, given, or allowed, in relation to the matters referred to in that document.

8. Delivery of false receipt, etc., to principal an offence - Every agent is guilty of an offence who delivers or presents to his or her principal any receipt, invoice, account, or other document of any nature whatsoever in relation to the business or affairs of his or her principal which to the knowledge of the agent is false or defective in any material particular, or is in any way likely to mislead the principal, or which to the knowledge of the agent omits to state the fact of any commission, percentage, bonus, discount, rebate, repayment, gratuity, or deduction having been made, given, or allowed, or agreed to be made, given or allowed, in relation to the matters referred to in that document, or which to the knowledge of the agent omits to disclose the fact of any gift or other consideration having been received by or promised to the agent in respect of those matters, unless in any such case the fact which is not disclosed is, to the knowledge of the agent, already known to the principal at the time when the said document is so delivered or presented to him or her.

9. Receiving secret reward for procuring contracts an offence - (1) Every person is guilty of an offence who advises any person to enter into a contract with a third person and receives or agrees to receive from that third person, without the knowledge and consent of the person so advised, any gift or consideration as an inducement or reward for the giving of that advice or the procuring of that contract, unless the person giving that advice himself or herself acts as the agent of the third person in entering into the contract, and is to the knowledge of the person so advised the agent of that third person.

(2) For the purposes of this section a person shall be deemed to advise another person to enter into a contract if he or she makes to that other person any statement or suggestion with intent to induce him or her to enter into the contract.

10. Aiding and abetting offences - Every person is guilty of an offence who aids, abets, counsels, or procures, or is in any way directly or indirectly knowingly concerned in or privy to the commission of any offence against this Act, or the commission outside Samoa of any act in relation to the affairs or business of a principal residing or carrying on business in Samoa which if committed in Samoa would be an offence against this Act.

11. Offences by persons acting on behalf of agents - Every person is guilty of an offence who, with or without authority, does on behalf of any other person who is an agent any act which if done by that agent himself or herself would be an offence against this Act.

12. Except as provided in this section, customary nature of gift to be no defence - (1) Nothing in this Act contained shall be deemed to prohibit or render illegal any recognised practice or usage of any trade or calling existing at the time of the passing of this act if the Court before which the matter of such practice or usage is in question shall be satisfied that such practice or usage is honest and reasonable; and, in so determining, the said Court may have regard to the circumstance that the commissions, rebates, or allowances paid or made by the third party to the agent under such practice or usage were prior to this Act lawfully receivable by the agent without any breach of his or her duty towards his or her principal; or the circumstance that the said commissions, rebates, or allowances so paid or made would not in any case be paid or allowed by such third party to the principal; or the circumstances that the same were paid or allowed in respect of services lawfully rendered by the agent to such third party without injury or loss to the principal and without any breach by the agent of his or her duty towards his or her principal.

(2) Except as provided by this section, evidence shall not be admissible in any proceeding for an offence against this Act to show that any such gift or consideration as is mentioned in this Act is customary in any trade or calling, nor shall the customary nature of any such gift or consideration be any defence in such proceedings.

13. Consent of Attorney-General necessary for prosecution - (1) No prosecution for an offence against this Act shall be commenced without the leave of the Attorney-General.

(2) The leave of the Attorney-General may be granted without notice to the accused, and it shall not be necessary in any information to state that such leave has been granted, or any term thereof. Objections to an information for want of such leave or for want of conformity to any term thereof shall be taken before a judge, or by motion to dismiss the information, before the trial of the accused commences, and not otherwise; and if a judge is satisfied that such leave has not been granted; or that any term thereof has not been conformed to, the information shall be dismissed.

14. Penalty on conviction - Any person convicted of an offence against this Act is liable, if a corporation, to a fine not exceeding 50 penalty units; and if any other person, to imprisonment for any period not exceeding 2 years or to a fine not exceeding 20 penalty units or to both such imprisonment and such fine.

15. Incriminating answers and discovery - No person shall in any civil or criminal proceedings be excused from answering any question put either viva voce or by interrogatory, or from making any discovery of documents, on the ground that the answer or discovery may incriminate or tend to incriminate him or her in respect of an offence against this Act; but his or her answer shall not be admissible in evidence against him or her in any criminal proceedings for an offence against this Act.

REVISION NOTES 2008

This law has been generally edited as provided for by section 5 of the Revision and Publication of Laws Act 2008. The following general revisions have been made –

(a) References to Western Samoa have been amended to Samoa in accordance with an amendment to the Constitution of Samoa in 1997.

(b) The fines have been amended and are stated as penalty units as provided for by the Fines (Review and Amendment) Act 1998.

(c) All references to the male gender have been made gender neutral.

(d) Amendments have been made to conform to modern drafting styles and to use modern language as applied in the laws of Samoa.

(e) Amendments have been made to up-date references to offices, officers and statutes.

(f) Other minor editing has been done in accordance with the lawful powers of the Attorney General.

The following amendments have been made to specific sections of the Act to incorporate amendments made by Act of Parliament passed since the publication of the Western Samoa Statutes Reprint 1978-1996 –

Section 14 was amended by the Fines Review Amendment Act 1998.

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2007. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.

Aumua Ming Leung Wai
Attorney General of Samoa

Revised and consolidated by Noumea Loretta Afamasaga.
Under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)

REVISION NOTES 2008 No. 2

This law has been generally edited as provided for by section 5 of the Revision and Publication of Laws Act 2008 by inserting commencement date.

No amendment has been made to this law since the publication of the Consolidated and Revised Statutes of Samoa 2007.

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2008. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.

Aumua Ming Leung Wai
Attorney General of Samoa

Revised and consolidated by the Legislative Drafting Division under the supervision of Teleiai Lalotoa Sinaalamaimaleula Mulitalo (Parliamentary Counsel)

REVISION NOTES 2009

This law has been reviewed in accordance with the powers provided for in section 5 of the Revision and Publication of Laws Act 2008. Some general revisions have been made including the insertion of the commencement date after the assent date.

There were no amendments made to this law since the publication of the Consolidated and Revised Statutes of Samoa 2007.

This law has been consolidated and revised by the Attorney General under the authority of the Revision and Publication of Laws Act 2008 and is an official version of this Act as at 31 December 2009. It is an offence to publish this Act without approval or to make any unauthorised change to an electronic version of this Act.

Aumua Ming Leung Wai
Attorney General of Samoa

Revised and consolidated by the Legislative Drafting Division under the supervision of Papalii Malietau Malietoa (Parliamentary Counsel).

The Secret Commissions Act 1975 is administered in the Ministry of Justice and Courts Administration.