THE HON MARK DREYFUS KC MP
MEMBER FOR ISAACS
SECOND READING SPEECH
CRIMES LEGISLATION AMENDMENT
(COMBATTING FOREIGN BRIBERY) BILL 2023
Thank you, Mr Speaker.
The Crimes Legislation Amendment Combatting Foreign Bribery Bill 2023 will amend the Criminal Code and the Income Tax Assessment Act 1997 to strengthen the legal framework for prosecuting foreign bribery.
The measures in the bill seek to address key challenges with investigating and prosecuting cases of foreign bribery in Australia.
The measures in the bill will look familiar to many members of this Parliament. That is because Schedule 1 of this bill is in substantially the same form as Schedule 1 of the Crimes Legislation Amendment Combatting Corporate Crime Bill 2019, which was in turn substantially the same as Schedule 1 of the Crimes Legislation Amendment Combatting Corporate Crime Bill 2017.
On two occasions across two Parliaments and over a period of five years the previous government introduced a bill to strengthen the legal framework for prosecuting foreign bribery but on two occasions, the previous government allowed those bills to lapse.
Those bills were never put to a vote despite measures like those contained in Chapter 1 of this bill enjoying bipartisan support over many years.
It is my hope that those opposite will work with the government to complete the work that they commenced when they were on this side of the chamber by supporting this bill.
Foreign bribery is a serious and insidious problem across the world. At a local level it can harm communities by increasing the costs and reducing the quality of vital public goods and services for citizens, skewing competition and misallocating precious resources. At a macro level it impedes economic development, corrodes good governance and undermines the rule of law.
Further, bribery by Australians and Australian businesses damages our international standing and can shrink the global market for Australian exports. As the Australian Institute of Company Directors told the Senate Committee that inquired into the Schedule 1 of the Crimes Legislation Amendment Combatting Corporate Crime Bill 2019, “foreign bribery and corruption causes significant harm to the governance of societies and economies abroad, as well as distorting competition and the integrity of markets".
As a signatory to the OECD Anti-Bribery Convention, Australia is required to ensure that our laws are effective in holding natural and legal persons to account for foreign bribery.
In 1999 Australia gave effect to these obligations by enacting the current foreign bribery offence in Division 70 of the Criminal Code. Over time, that offence has proved to be overly prescriptive and difficult to use.
The measures in this bill have been carefully developed and targeted to overcome these issues to ensure our legislative framework adequately deters and punishes the corrupt practice of foreign bribery.
Under the current foreign bribery offence, the prosecution needs to show that both a bribe and a business advantage sought were 'not legitimately due' this presents challenges where bribes are concealed as legitimate payments.
To address this, the bill replaces this requirement with the concept of improperly influencing a foreign public official to better reflect the type of conduct involved in foreign bribery.
The Bill amends the definition of foreign public officials to also include candidates for public office.
The Bill also broadens the scope of the foreign bribery offence to capture bribery conducted to obtain a personal advantage, not a business advantage. This is because, as the experience of law enforcement agencies has shown, a bribe could be in a range of different forms such as the bestowal of a personal honour, the processing of a visa request, or a reduction in an individual's personal tax liability.
The Bill also removes the existing requirement that for the offence to be established the foreign public official must be influenced in the exercise of their official duties.
The Bill also clarifies that the offence does not require the accused to have had a specific business or advantage in mind, and that the business or advantage can be obtained for someone else.
Most significantly, the Bill creates a new offence for corporations that fail to prevent foreign bribery which carries a maximum penalty of $27.5 million or higher. This measure holds companies directly liable for the foreign bribery activities of their employees, external contractors, agents and subsidiaries unless the business can demonstrate that they had adequate procedures in place.
The United Kingdom has successfully used a similar offence to prosecute companies in several foreign bribery cases, which has reportedly had a significant and positive influence on the adoption of a more effective corporate compliance program programs to prevent bribery.
To support the introduction of this new offence, guidance material on what constitutes adequate procedures to avoid criminal liability will be published. The Bill requires me, as the responsible minister, to publish guidance on the types of measures that are likely to constitute 'adequate procedures' within six months of Royal Assent of the Bill.
The draft Guidance will largely be modelled on the UK Government's Guidance that accompanies the failure to prevent offence under Section 7 of the UK Bribery Act. In finalising the Guidance material over the coming months, the Government will build on the work that was undertaken, but never completed by the previous government in 2019 and 2020.
The Government will also have regard to existing guidance published by the Australian Trade Commission, the OECD, and other international organisations. This is intended to enable Australian companies that have already framed their anti bribery policies on international guidelines to easily incorporate additional policies. relevant to the Australian context.
In addition to the measures contained in this bill, the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 would have introduced a Deferred Prosecution Agreement Scheme. This bill contains no such Scheme.
The purpose of a Deferred Prosecution Scheme is to strike a balance between encouraging companies to self-report serious offending and polling companies to account for serious corporate crime. However, given that there is universal agreement, that the existing foreign bribery offences in the Criminal Code are grossly inadequate, it is premature to entertain the introduction of a Deferred Prosecution Scheme.
The introduction of such a Scheme should only be entertained up measures in this bill have been enacted, and given time to work
When ordinary Australians commit crimes they feel the full force of the law. However, under the Deferred Prosecution Agreement Scheme proposed by the former government, companies that engaged in serious corporate crime, including foreign bribery, would have been able to negotiate a fine a greater set of conditions and have their cases put on indefinite hold.
The amendments in the Bill will strengthen Australia's implementation and enforcement of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention against Corruption.
In December 2021, the OECD found that Australia had increased its enforcement efforts against companies and subsequently upgraded Australia under the relevant recommendations.
Introduction of this bill will further enhance our enforcement efforts under the Anti-Bribery Convention.
The Albanese Government takes corruption very seriously - whether it is corruption in the public sector or the private sector.
In July 2023 the National Anti-Corruption Commission will be established to investigate and report on serious or systemic corruption in the Commonwealth public sector, refer evidence of criminal corrupt conduct on prosecution and undertake education and prevention activities regarding corruption.
The Combating Foreign Bribery Bill enhances Australia's response to foreign bribery and supports our obligations under the OECD Anti- Bribery Convention.
This Bill demonstrates the Government's commitment to combatting foreign bribery and ensuring our laws are effective in detecting, investigating and prosecuting foreign bribery.
I commend the bill to the House.