Michelle Ananda-Rajah (Higgins, Australian Labor Party) Share this | Hansard source

Foreign bribery is a threat to Australia's democracy and to our values. Recent revelations that the Department of Home Affairs entered multimillion-dollar contracts with a man suspected, and since convicted, of bribing public officials in Nauru has illuminated major gaps in Australia's foreign bribery laws. How Radiance International—an Australian based company under investigation by the AFP for paying more than $100,000 in bribes to two officials in Nauru—was given $9.3 million in government contracts remains unclear. While the Minister for Home Affairs has wasted no time in launching an independent inquiry into the management of regional processing procurements, it once again begs the question as to how we got here in the first place. Questions must be raised as to whether our own systems are fit for purpose—the evidence would suggest not—and whether the super-portfolio experiment of home affairs is actually in the national interest, including whether the right checks and balances are in place or are indeed functional.

Staff turnover in the Public Service is another issue that feeds into the weakening of the system because, without institutional memory, we cannot build up a firewall against threats within or without. The insidious threat of bribery to our democracy remains ever present, and it demands our vigilance. By January of last year, Australia had dropped 12 points in Transparency International's Corruption Perceptions Index since 2012, placing us 18th in the world. The Albanese government's introduction of the National Anti-Corruption Commission will help harden the system against the influence of foreign interference, but more needs to be done. The work is ongoing in response to evolving threats.

Foreign bribery erodes trust in public officials and, by extension, public institutions. It undermines good government and compromises the integrity of Australian business in the eyes of the local and international community. It distorts the playing field with respect to trade or commerce, compromising both our integrity and our economic standing. Without adequate channels for successful prosecution, these clandestine practices will continue to go unchecked and unpunished.

In 1999 Australia ratified the OECD's antibribery convention, criminalising foreign bribery under division 70 of the Criminal Code. Over time, this legal framework has proved inadequate in deterring and punishing those who seek to gain leverage over public officials. Despite playing with the idea of strengthening Australia's foreign bribery laws, the former government failed twice to deliver any meaningful reform within the space of five years. They essentially kicked the can down the road.

If we are to effectively criminalise and prosecute foreign bribery, we need a framework that is simple to enforce and adaptable to the evolving nature of foreign bribery offending. We need a framework that protects natural justice and due process without being overly bureaucratic or prescriptive. We can't afford a system in which holding criminals to account is more effort than it's worth. The proof is in the prosecutions. Since Australia's first foreign bribery laws were enacted more than two decades ago, Australia has successfully prosecuted only three cases of foreign bribery involving corporations and seven involving individuals. That is an unacceptably low track record. The current framework is overly prescriptive. The threshold is set too high, with a need to show that both the bribe and the business or personal advantage that were sought were not legitimately due. 'Legitimately due' can present challenges. For example, bribe payments can be concealed as agent fees, making it difficult to show beyond a reasonable doubt that the payments were not legitimate.

The bill before the House today, the Crimes Legislation Amendment (Combatting Foreign Bribery) Bill 2023, seeks to streamline the investigation and prosecution of foreign bribery offences. The amendment sends a clear message to actors who seek to buy influence overseas. If you attempt to bribe a foreign public official, you will be caught, and you will be prosecuted. Under this bill, the offence of bribery of a foreign official is replaced by a much broader scope of offending, now encompassing the bribery of candidates for public office and bribery with a view to obtaining personal advantage.

The amendment removes the barrier for the prosecution to prove the element of 'not legitimately due' and replaces it with the concept of 'improper influence'. Improper influence may not always be dishonest, an example being the conferring of a scholarship to a child of a foreign official to exert improper influence. The bill makes related changes to income tax legislation to prevent a person from claiming tax deductions relating to foreign bribery. It vests responsibility in corporations to prevent bribery of a foreign public official on their watch. Businesses that turn a blind eye to the misconduct of their agents or employees face penalties of up to $30 million, if not more—a significant incentive for companies to implement and maintain practices that actively combat this practice. It also repeals a number of arduous barriers to prosecution. No longer can bribes be concealed as payments that are legitimately due and thus immune to prosecution. No longer is there any requirement that a bribe have actual influence over the exercise of someone's duties.

Under this bill, the rights and freedoms of suspected offenders are preserved. The measures it takes are reasonable, proportionate and undeniably necessary in delivering on the bill's objectives. Importantly, the bill ensures that the rights enjoyed by the defendant in a criminal trial in Australia are in no way diminished or altered. The bill is a continuation of the Albanese Labor government's commitment to strengthening integrity in public institutions, hardening them to the corrosive effects of corruption.

On 1 July the NACC opened its doors, delivering on our commitment to investigate and report serious and systemic corruption in the Commonwealth public sector. The bill is cast from the same mould, matching our commitment to stamping out foreign bribery with a legal framework capable of delivering exactly that. I commend this bill to the House.

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