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

I said, the effects of these amendments—and that's (2), (3), (4), (5), (7), (9), (11), (12) and (13)—are to make dishonesty the fault element for the offences of giving and receiving a corrupting benefit. The bill contains two new corrupting-benefit criminal offences with maximum penalties of 10 years and/or 5,000 penalty units. The criticism of the way these offences have been drafted come from stakeholders in business, the Ai Group, the ACTU representing workers, academics, legal experts and the Law Council of Australia. There is no requirement in relation to either of these new offences that the defendant act dishonestly, which creates a situation of strict liability where an alleged offender's state of mind or intention will be irrelevant to the determination of guilt. This is a departure from the usual approach to criminal offences of this seriousness. For example, the Commonwealth Criminal Code contains two analogous offences of bribery of Commonwealth officers where the fault element is dishonesty, and the Criminal Code defines 'dishonesty' as 'dishonest according to the standards of ordinary people and known by the defendant to be dishonest according to the standards of ordinary people'. So instead of being based on these existing Criminal Code offences, the new offences in the bill require the corrupting benefit to be sought or provided with the intention of influencing an official or an employee of a registered organisation to carry out their duties or obligations improperly.

There is no definition of improperly in the bill. The absence of a definition of 'improperly' has the potential to give rise to considerable ambiguity and to widen the scope of the offence beyond what is intended.

The Law Council has identified the lack of any definition of the term 'improperly' and 'not legitimately due' in the bill as causing significant uncertainty and potential overreach. Labor's amendments address the concerns raised by stakeholders by requiring the actions of the defendant to be dishonest. The definition of dishonesty is imported from the Criminal Code, so the test for corrupt behaviour for officials of registered organisations and employers is the same as that which currently exists for Commonwealth officers. I ask the minister if she is prepared to accept these amendments, as moved together, that deal with the issue of making dishonesty the fault element.