Doug Cameron (NSW, Australian Labor Party, Shadow Minister for Human Services) Share this | Hansard source

These amendments make dishonesty the fault element for the offences of giving and receiving a corrupting benefit. They are amendments (2), (3), (4), (5), (7), (9), (11), (12) and (13), and I will be seeking leave to move them together.

Leave granted.

by leave—I move amendments (2), (3), (4), (5), (7), (9), (11), (12) and (13) on sheet 8143 together:

(2) Schedule 1, item 3, page 3 (line 21), omit "to act improperly".

(3) Schedule 1, item 3, page 4 (after line 23), at the end of Division 1, add:

536CA Dishonesty

(1) For the purposes of this Part, dishonest means:

(a) dishonest according to the standards of ordinary people; and

(b) known by the defendant to be dishonest according to the standards of ordinary people.

(2) In a prosecution for an offence against this Part, the determination of dishonesty is a matter for the trier of fact.

(4) Schedule 1, item 3, page 4 (line 29), after "defendant", insert "dishonestly".

(5) Schedule 1, item 3, page 5 (lines 9 to 13), omit subparagraphs 536D(1) (b) (i) and (ii), substitute:

(i) in the performance of his or her duties or functions as such an officer or employee; or

(ii) in the exercise of his or her powers or performance of his or her functions under this Act or the Registered Organisations Act; or

(7) Schedule 1, item 3, page 5 (line 25), after "defendant", insert "dishonestly".

(9) Schedule 1, item 3, page 6 (lines 1 to 5), omit subparagraphs 536D(2) (b) (i) and (ii), substitute:

(i) in the performance of his or her duties or functions as such an officer or employee; or

(ii) in the exercise of his or her powers or performance of his or her functions under this Act or the Registered Organisations Act; or

(11) Schedule 1, item 3, page 6 (line 26), omit the heading to subsection 536D(4), substitute:

Giving an advantage which would not be legitimately due

(12) Schedule 1, item 3, page 6 (lines 28 to 30), omit "whether a performance or exercise of duties, functions or powers would be improper, or whether an advantage would not be legitimately due,", substitute "whether an advantage would not be legitimately due".

(13) Schedule 1, item 3, page 6 (line 31), omit the heading to subsection 536D(5).

The amendments that we would also want to move together are to provide that the advantage of any kind, not legitimately due, intended to be obtained by the provision or request of a corrupting benefit, must be related to the affairs of the registered organisation. They are amendments (1), (6), and (10) on sheet 8143.

The CHAIR: Senator Cameron, could we suggest that we deal with the first ones relating to dishonesty that you just moved, and then we deal with these subsequent ones?

Yes, I just wanted to outline, broadly, where we're going so you know where we're going, and maybe some of the minister's advisers can then look at these other issues. I'll come back to them, as I've outlined. The other issue that we would want to deal separately with is item 8, and the effect of that amendment is to make the test the same for the person making the bribe and the person taking it—that is an intention to influence. Then (14) and (15) together—these amendments have the effect of changing the proposed offences of making and receiving cash, and in-kind payments from a strict-liability offence to one where the defendant has to act dishonestly.

The CHAIR: For clarity, we've broken them into four tranches.

) ( ): Yes, and (16) as well.

The CHAIR: So (14), (15) and (16)?

No, (16) is separate, sorry. That amendment changes the definition of 'related party' in relation to the new requirements to make disclosures during negotiations of enterprise agreements. So those are the points within those amendments that act together. We would certainly want to deal with them in those terms.

The CHAIR: Is leave granted?

Leave granted.