Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Hansard source

I rise in support of the Crimes Legislation Amendment (Combatting Foreign Bribery) Bill 2023. Through this bill, Labor has finally, albeit begrudgingly, moved to address a serious issue that the coalition has been pursuing for some years. Unfortunately, though, with the bill presented to it, Labor has done too little, too late. What Labor has done is produce an incomplete solution that ignores how the prosecution of foreign bribery is significantly enhanced by allowing deferred prosecution agreements. We, of course, will support the bill because we are committed to opposing foreign bribery, but we will also move amendments to add a deferred prosecution scheme, because doing so makes the enforcement of foreign bribery offences significantly more effective.

Foreign bribery, as we all know, is an incredibly serious criminal offence. It is bad for business, it hurts us economically and it damages our international reputation. The coalition has been fighting foreign bribery for decades. That is our record. That is why it was the coalition government that introduced the first foreign bribery offences into the Criminal Code, in 1999; that is why, under the leadership of John Howard, Australia ratified the OECD anti-bribery convention; and that is why we introduced these measures.

Now, I say 'we introduced' these measures because, although this is a government bill, the Attorney-General has frankly admitted that these measures are almost an exact copy of measures the coalition introduced in 2017 and then reintroduced into the last parliament. Labor has, once again, been copying the coalition's homework. But why not? It's actually very good policy, and I'm personally pleased that the Attorney-General and Labor have finally come to this realisation. But the wisdom of the measures in this bill is not the whole story. These measures should have become law in the last parliament, but the reality is that the Labor Party did everything they could do to delay action on foreign bribery.

You only need to look at how they approached this issue at the public hearings when these measures were examined by a committee in the last parliament. The very first question from Labor was this: whether the bill should be deferred. The second question expressed surprise and concern that the provisions of the bill, including the schedule that set out the very provisions that we're looking at now, hadn't been changed following the banking royal commission. The third question asked why the legislation was necessary at all. And the fourth suggested that 'the whole matter', being legislation to address corporate crime, should be put on hold. So, having made it clear that they did not want to progress the matter, Labor's dissenting report then recommended the removal of key parts of the bill.

And Labor of course wasn't alone. The Greens also made clear that they did not support the legislation proceeding at the time. They also wanted the bill deferred. But it is worth putting on the record Labor's history of opposition, delay and obstruction when it comes to foreign bribery, because it illustrates a recurring problem with this government and with this Attorney-General. The measures in the bill we have before us are lifted almost directly from the coalition playbook from the last parliament. They were a good idea then and yes, they are a good idea now. But in 2020, when given the opportunity to support measures that are clearly in Australia's interests, Labor decided it would prefer to delay—to play politics. Why? Because the policy came from the coalition. Labor could not and would not put Australia's interests ahead of their own tricky political games. And now that the Labor Party and, as I said, the Attorney-General, have finally and begrudgingly come to the party, they have done so too late and, even worse, with a weaker solution than the coalition had put before us. This bill is weaker than the coalition 's proposals and the ones that we had based them on, because, very fundamentally, it does not include deferred prosecution agreements.

Now, it's worth spending a bit of time here exploring what deferred prosecution agreements actually are and why they are so important in foreign bribery prosecutions. A deferred prosecution agreement, also called a DPA, allows a prosecuting body to negotiate conditions with a defendant in exchange for deferral of prosecution. It often involves paying a significant fine and making changes to the way business is done. If the conditions are not met then the prosecution can be re-enlivened. DPAs use corporate offences like foreign bribery and false accounting. These crimes—it's a fact—are notoriously difficult to prosecute. They require intensive investigation. They involve paper trails that cross jurisdictional boundaries. The volume of documents and data can be immense. Proceedings can be protracted and expensive, and defendants are often well resourced. This means that, when these crimes are prosecuted, scarce investigatory and prosecutorial resources are tighter in protracted and uncertain litigation.

The risk and expense is what Labor says Australians should have; hence the significant deficiencies in the bill we have before us. Deferred prosecution agreements are an obvious solution. They allow the punitive element of justice to be satisfied. Under a DPA, prosecutors will typically secure significant penalties, sometimes involving fines amounting to billions of dollars. They serve corrective purposes through measures like enhanced compliance programs and ongoing monitoring to ensure the offending cannot happen again, and they can assist in the prevention and deterrence of crime—for example, through measures requiring ongoing cooperation in prosecuting individuals involved. Everything that you'd achieve in a successful criminal prosecution can be achieved through a deferred prosecution agreement.

When it comes to foreign bribery, these are the benefits Labor does not want Australians to have. By cutting DPAs away from this bill, Labor and the Attorney-General are saying, 'Rather than achieving similar results at a fraction of the cost and risk, we want our limited investigative resources tied up, potentially for years.' Labor and the Attorney-General are saying this: 'We do not want Australia to get its share, as multiple jurisdictions did with a DPA that saw Airbus pay around US$3.9 billion in penalties to countries around the world.'

In terms of the international experience of DPAs, it's clear that DPAs are the cornerstone of foreign bribery prosecutions in places like the US and the UK, and it's not hard to see why. They incentivise self-reporting, a good thing, and limit adverse impacts, another good thing. They lead to an increase in prosecutions and increased fines, they allow a result to be achieved to be achieved much more quickly and they are subject to overriding safeguards. Under the coalition's proposal, for example, a former judge would need to certify that every DPA was fair, reasonable, proportionate and in the interests of justice.

This bill is meant to enhance implementation of the OECD anti-bribery convention, but in 2021 the OECD Council itself recommended that parties consider using non-trial solutions like DPAs. In short, the international body responsible for stopping foreign bribery expressly calls for mechanisms like DPA schemes. Then, of course, we have what the stakeholders have said about this bill. It is little wonder that a litany of stakeholders came out in support of DPA schemes. In the inquiry into this bill, Allens Linklaters, the Law Council of Australia, Transparency International Australia and the Uniting Church Synod of Victoria and Tasmania all made submissions in support of a DPA scheme.

Then let's have a look at what the Attorney-General and Labor say. Compare those submissions to the Attorney-General's defence of this bill. In the Attorney-General's second reading speech, he told the parliament this:

… it is premature to entertain the introduction of a deferred prosecution scheme.

The introduction of such a scheme should only be entertained after the measures in this bill have been enacted and given time to work.

Clearly, the Attorney-General of Australia thinks, 'Guess what, Australians: you just have to wait a few more years,' because, when you take a closer look, that is what his argument about giving these offences time to work will actually entail.

Needing time to work means you would need to wait until the bill passes. Well, when's that going to happen? Then you have to wait another six months until it commences, and then you need to wait into a person is prosecuted under these new laws. In fact, you'll probably have to wait until a few prosecutions are concluded so that you have a reliable evidence base. The Attorney knows full well that, as we explained when we last introduced these changes, the experience across the OECD was that foreign bribery cases took an average of—lo and behold—7.3 years. So even with the improvements in this bill—which, as I said, is a coalition bill, basically—it still might take years before we can say we've given these improvements, to quote the Attorney-General, 'time to work'. In other words, what does the Attorney-General of Australia want? He wants to wait until the next parliament, or maybe even the one after that, before entertaining what stakeholders are asking for and what the international experience shows, and that is, of course, a DPA scheme. Maybe if we give these amendments, to again quote the Attorney-General of Australia, 'time to work', we might have a DPA scheme by—I don't know—2030. With the very greatest of respect, the Attorney-General's excuses are, quite frankly, flimsy and unpersuasive. And, let's face it, they are certainly not supported by the submissions or the international evidence.

Why won't the Attorney-General improve this bill by introducing a DPA scheme now and supporting the amendment the coalition will be putting forward?