Peter Khalil (Wills, Australian Labor Party) Share this | Hansard source

I'm going to start in good faith. I assume that the member for Fisher agrees that foreign bribery is serious and it's harmful. I assume that he agrees that it increases the costs for communities and reduces the quality of goods and services. I'm going to assume that he agrees that, when Australians and Australian businesses engage in bribery, our international standing is impaired. I'm going to assume that he understands that it undermines our rule of law—a very important principle for him as a lawyer and for all of us, as Australians. I'm going to assume that he understands that it diminishes the global market for our exports, and I would hope that he would agree and understand that our government has zero tolerance for corruption, whether it be in the public or the private sector and that this government is taking action and cracking down on foreign bribery by Australian companies. We're removing the barriers to investigations and prosecutions.

I say this because there was a fair bit of grandstanding from the previous speaker, the member for Fisher. This bill, he would understand, is long overdue. Despite his empty protestations, the Liberals—his party—had almost a decade to enact such measures within the bill, but they failed to do so. For 10 years they failed!

The measures we're currently debating are almost identical to the amendments first introduced to this parliament by the then former Liberal government in 2017, and which were then reintroduced in 2019. Despite the critical nature of these measures, the former government, of which the member for Fisher was a member, allowed those amendments to lapse and never brought them on for debate. This was despite being given bipartisan support from the Labor Party, which was then in opposition. The Liberal government sat on the bill after first introducing it in December 2017 and then had until 21 May 2022, the date of the last federal election, to do something about it. But they did nothing! Nothing! That word aptly describes in summation the former government's efforts—nothing. It's clear that they made a decision not to put those measures up for debate, otherwise we would have debated them. It's clear that strengthening Australia's foreign bribery offences was not a priority of the former Liberal government.

The fact is that this bill will help this government to crack down on bribes that are built into seemingly legitimate contractual arrangements. What makes this bill particularly critical are recent reports of millions of taxpayer dollars allegedly being paid to foreign officials through suspicious contracts between private companies and subcontractors engaged by the Department of Home Affairs on Nauru and in Papua New Guinea. These are allegations of suspicious contracts during the time when the now Leader of the Opposition was the Minister for Immigration and Border Protection and the Minister for Home Affairs. He was in charge; he knew what was going on, one would assume.

Reports suggest that the Department of Home Affairs may have disregarded what was effectively a bribe disguised as a legitimate contractual arrangement. This happened, as I said, when the now Leader of the Opposition was the Minister for Home Affairs. He had responsibility. Furthermore, when the now Leader of the Opposition was in his role as the Minister for Home Affairs, he knew that his department had a multimillion dollar regional-processing contract with a man who had been charged by the AFP with foreign bribery. Even if the Leader of the Opposition claims that he did not know about the foreign bribery at the time, these contracts became a matter of public record in September 2018. In September 2018, Mr Bhojani, who was associated with Radiance International, was charged by the AFP for foreign bribery. And in August 2020, he was convicted after pleading guilty. The department continued to pay Mr Bhojani millions of taxpayer dollars, and extended contracts with his company during this period.

One of the companies related to suspicious contracts on Nauru was Canstruct International. A contract was awarded to this company to provide welfare and garrison services on Nauru, despite not having any experience of providing welfare or those services to vulnerable people. The contract between the Department of Home Affairs and Canstruct International was extended many times, without a competitive tender. This was a shelf company with no relevant experience getting a $1.8 billion contract without a competitive tender from the former Liberal government. We also know that the Leader of the Opposition knows this company very well. Executives of Canstruct enjoyed exclusive access to the now Leader of the Opposition during this period. These sorts of arrangements are exactly what this government intends to target through amendments to this bill.

I will say that the corporates in this case, in respect of this bill, will be protected where they can show they have followed adequate procedures—that those are in place to prevent foreign bribery by an associate. So we're going to have guidance material for the corporations. I know that the previous speaker was up in arms about the impact and so on on these companies, but there's a fair set of guidance material that will be able to guide corporations. They can follow those guidance materials and make sure that they're above reproach. The UK has utilised a similar offence to prosecute companies in a few cases of foreign bribery. These are reforms that ensure that a company cannot simply ignore bribery conducted by its employees or contractors where it results in benefits for their business.

Companies can currently avoid criminal liability under existing offences in the Criminal Code even if they know or strongly suspect foreign bribery is occurring. These companies have been able to remain wilfully blind to the activities of their associates, including through the use of third-party agents located offshore. These reforms will enable bribery by an associate of a corporation to trigger corporate liability. That's what the member for Fisher was so upset about—not that they just sat on this for five years after they introduced the bill; maybe he was upset about the transparency of this. Maybe all of those in the opposition who had the responsibility to actually do something about this when they were in government and did nothing, maybe that's what they're upset about. Maybe there's a little bit of guilt about the fact that they did nothing about this when they should have. At any rate, this will encourage corporations to put measures in place to ensure bribery can be prevented.

The reforms will create a new offence—that is certainly true—for corporations that fail to prevent foreign bribery. The maximum penalty will be $27.5 million or higher. Companies can also be held directly liable for the foreign bribery activities of their employees, external contractors, agents and subsidiaries unless a business can demonstrate they had adequate procedures in place. That is eminently fair. You are responsible as an entity for the operations that you are conducting as a corporate entity. These reforms are about ensuring accountability, something that was very far away from the minds of the opposition when they were in government with respect to sitting on this bill and doing nothing for so many years.

We know that prosecuting for foreign bribery is currently so challenging. The offence in division 70 of the Commonwealth Criminal Code is thought to be difficult to use and too prescriptive. To date there have been low numbers of prosecutions in Australia. The OECD has also previously warned that Australia's enforcement system is inadequate. It does not sufficiently punish the bribing of foreign officials. The OECD, led by a former Liberal finance minister Mathias Cormann , also raised serious concerns as to whether the enforcement regime provided sufficient deterrence for this type of activity. That is why these reforms will remove barriers to prosecution and help in the effort to deter this type of activity.

As part of this bill, the existing foreign bribery offence will be replaced to ensure it better captures typical cases of foreign bribery identified by law enforcement. Prosecutors currently need to show that both the bribe and the business advantage sought were 'not legitimately due', which is difficult in cases where bribes are disguised as legitimate payments. This bill replaces the need for this and instead requires prosecutors to demonstrate the improper influencing of a foreign public official. It also broadens the scope of the foreign bribery offence to include bribery conducted that involves a personal advantage, not just a business advantage. It modifies the definition of 'foreign public official' to include candidates for public office. The bill also introduces a new corporate offence of failure to prevent foreign bribery. This relates to cases where an associate of a body corporate has committed bribery for the benefit of the body corporate.

We heard a lot of grandstanding from the previous speaker, the member for Fisher, railing against the very bill that was introduced by his government when he was part of that government back in 2017, and then reintroduced again in 2019—the very same bill and the very similar measures which they sat on, did nothing about and did not bring on for debate in this parliament. Well, we're not doing that. We're a government that takes action. We see the problem and, despite the do-nothing attitude of the previous mob, we are going forward and ensuring that this bill passes through this parliament, because it will fundamentally change the way corporations are prosecuted for bribery. Companies will no longer avoid criminal liability if they know or strongly suspect foreign bribery is taking place. They will no longer be able to turn a blind eye to activities of their associates or through the use of third-party agents. The only defence they will have is the existence of adequate procedures that have to be put in place, based on the guidance material, to prevent bribery from occurring in the first place.

The Albanese government is taking action on foreign bribery by Australian companies after 10 years of nothing happening. This is about accountability and the value of accountability, which we hold high. This is about having no tolerance for corruption. That is why we are pushing ahead with this bill, despite the empty protestations of the previous speaker, the member for Fisher, and the do-nothing attitude that was emblematic of the opposition when they were in government. It's time for us to take action. It's time for us to pass this bill through the House.

See this speech in context