Mark Dreyfus (Isaacs, Australian Labor Party, Cabinet Secretary) Share this | Hansard source

The government thanks the members who've contributed to this debate on the Crimes Legislation Amendment (Combatting Foreign Bribery) Bill 2023. I would note the many contributions that have drawn attention to the lack of seriousness with which the former government approached this question of foreign bribery and the lack of seriousness with which the former government approached not only the question of foreign bribery but looking into allegations of foreign bribery when they arose and looking into the interaction of foreign bribery with a range of contracts that the former government had entered into.

To go to the purpose of this bill, it is to strengthen the legal framework for prosecuting foreign bribery and to give effect to Australia's international obligations under the OECD anti-bribery convention. The government has no tolerance for corruption of any kind, whether in the public sector or in the private sector. Foreign bribery is corruption. It is an insidious problem across the world. It harms communities, impedes economic development and undermines the rule of law. The measures in the bill are long overdue.

As a number of members have noted in the course of this debate, the former government introduced a bill containing virtually identical amendments in December of 2017. It was accompanied by a strongly worded media release. And then? Nothing. Without any explanation, the former government never even brought that bill on for debate. It lapsed at the end of the 45th Parliament. In December 2019, some six or so months after the 2019 election, the former government introduced another bill containing the same amendments, accompanied again by another strongly worded media release. But that bill was never brought on for debate either. Once again, without any explanation, the former government allowed these critical measures to lapse. In other words, after the 2019 election, the former government brought back the bill in December 2019 and that was the last we heard of it. It was so typical of the incompetent former government, a government that was very, very big on announcements and very, very small on action. What a disgrace that the inaction should have been on foreign bribery.

The Albanese government has a different approach to the insidious problem of foreign bribery. This government is committed to acting where the former government failed to act. 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.

To do this, the bill amends the current foreign bribery offence to replace the requirement that the advantage sought be 'not legitimately due' with the concept of 'improperly influencing a foreign public official' to capture bribes concealed as legitimate payments. The bill also broadens the scope of the offence to ensure that it keeps pace with the evolution of foreign bribery conduct. The new offence will capture bribery conducted for personal advantage, not just a business advantage. It removes the requirement that a foreign official be influenced in the course of their official duties. It also makes clear that the prosecution does not have to prove that an accused had a specific advantage in mind and that the advantage can be obtained for someone else.

The bill also introduces a new offence for companies that fail to prevent foreign bribery by an associate unless the company can show that it had adequate proceedings in place to prevent foreign bribery. The bill requires the Attorney-General to publish guidance on the steps that a body corporate can take to prevent an associate from bribing foreign public officials. The Attorney-General's Department released a draft version of the guidance in 2020 for public consultation. Once the measures in this bill are enacted, a final version of the guidance will be published in advance of the commencement of the new corporate offence to ensure businesses have sufficient time to implement adequate procedures.

During the course of the debate, a number of honourable members on the opposite side of this chamber raised the issue of deferred prosecution agreements. Under the former government's proposed deferred prosecution agreement scheme, which it introduced into the parliament twice—just to remind members, that was in 2017 and then, when that bill lapsed at the 2019 election, we got another bill after the 2019 election, but it was never taken forward, never implemented—the Commonwealth Director of Public Prosecutions would have been encouraged to negotiate so-called deferred prosecution agreements with companies that have engaged in criminal activity, as an alternative to prosecution. Under a deferred prosecution agreement, a company could negotiate the payment of a penalty and undertake to do certain things to ensure it or its employees don't engage in the conduct again. If the company breached the agreement, the Commonwealth Director of Public Prosecutions would be able to prosecute. Under the proposed scheme, corporations that engaged in serious criminal conduct would enjoy the unique privilege of being able to negotiate their own punishment under a deferred prosecution agreement.

As I said in my second reading speech, 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, agree to a set of conditions and have their cases put on indefinite hold. This government will only entertain the introduction of such a scheme as a measure of last resort and, in any event, after the measures introduced by this bill have been implemented and given time to work.

Corruption is never acceptable and this government's starting point is that when companies engage in serious criminal wrongdoing, like foreign bribery, they should feel the full force of the law. This bill enhances Australia's response to foreign bribery and supports our obligations under the OECD antibribery convention. It is shameful that the former government, over years and years—over two terms of this parliament—failed to legislate to give effect to Australia's international obligations and failed to act to do more about foreign bribery. This bill demonstrates our government's commitment to tackling corruption and, in particular, ensuring our laws are effective in detecting, investigating and prosecuting foreign bribery. I commend the bill to the House.

Question agreed to.

Bill read a second time.

See this speech in context