David Shoebridge (NSW, Australian Greens) Share this | Hansard source

I indicate that the Greens will be supporting the Crimes Legislation Amendment (Combatting Foreign Bribery) Bill 2023. The core thing this bill does is replace the existing offence of bribery of a foreign public official contained in the Criminal Code Act with a new offence designed to make it actually achievable to get a prosecution to stick. The new offence expands the scope of the existing foreign bribery offence. It does things such as capture candidates for office in the definition of 'foreign public official' and apply the offence where a personal, as opposed to a business, advantage is being sought.

The bill introduces a new corporate offence based upon the UK experience of failure to prevent bribery of a foreign public official. The bill makes some related changes to income tax legislation that, quite reasonably, prohibit a person from claiming a tax deduction for the money they spent on bribing a foreign official. The thought that corporations in Australia are currently able to do that is remarkable, but this bill is closing that loophole.

The bill is incredibly similar to two bills that were introduced by the coalition. I think the first one was in 2017 and the second one was in 2019. The difference is that this bill doesn't contain the deferred commencement provisions that were included in each of those bills. Whilst I acknowledge the shadow AG's contribution that points out just how similar the bills are, I will say this about the current Attorney-General: not only has Labor introduced the bill; they're actually now moving on it, and we're, hopefully, going to vote it up, and it will become law. I think that's an important distinction. Yes, the coalition introduced two bills, but it never found the energy or enthusiasm to bring it to a vote and have them become law. Why that happened hasn't been explained. So I will give the Attorney this credit. Yes, it's very similar—in large part a cut and paste of the coalition bills of 2017 and 2019—but we're actually debating it and might make it law, so tick.

Of course, the bill went off to the Senate Legal and Constitutional Affairs Legislation Committee, and I want to acknowledge the chair and members of that committee. I particularly want to acknowledge the forensic work of Senator Scarr. I think the additional comments that Senator Scarr put into the report made the best case possible for a deferred prosecutions regime, but, for reasons I will explain very briefly, we won't support those amendments in their current form, although we do support a broad-ranging review of the act. I would hope one of the key things that broad-ranging review does is look at the absence of deferred prosecution provisions, look at the international experience and work out whether or not we should promptly put that into law.

The history of foreign bribery in Australia is probably quite long; the history of foreign bribery law in Australia is actually quite brief. In fact, internationally, the world has largely been chasing some reforms that were put in by the Carter administration in the United States, which was the first jurisdiction on the planet to pass legislation to make it a crime to bribe a foreign official. At the time, it was resisted by corporate America. It was considered to place corporate America at an international disadvantage. If their opponents could bribe foreign officials, they should be able to bribe foreign officials too! At different times we've heard that same argument applied in relation to Australian business. 'It's not fair,' says extraction company A, 'that our competitors can go to this country, corrupt their legal system and bribe their officials, and we can can't. We're at a competitive disadvantage.' There are many things that we disagree on in this chamber, but I'm glad to see that all significant parties in the chamber recognise that argument as rubbish. If it had any resonance in the 20th century, I'm glad it has no resonance now. We have a collective global obligation to uphold the rule of law and to do everything we can not to see our corporate interests corrupting and tearing down the rule of law, democratic institutions and good governance in other countries. I'm glad to say that's a common understanding between the Labor Party, the Greens and the coalition in this regard.

In fact, it wasn't until the mid-1990s that we saw other jurisdictions moving to criminalise the corruption of foreign officials. That came about after some really important global work done at the UN level, where we had the Convention on Combating Bribery of Foreign Public Officials in International Business Transactions. It was initially in the OECD but then picked up broadly as an antibribery convention. It was signed in 1997 and, a year and a half or so later, ratified by Australia, and then legislation followed.

What has become clear in the two-and-a-bit decades since is that there are significant gaps and loopholes in the legislation that was passed in the late 1990s. One of those loopholes is being closed in this bill. It might be useful to read from the explanatory memorandum in that regard. It explains just one of the difficulties in prosecuting foreign bribery under existing law:

Challenges relating to the existing foreign bribery offence include the need to show that both the bribe and the business or personal advantage sought were not legitimately due. In some cases, the threshold of 'not 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 legitimately due. Further, proving the existing offence can also require reliance on international legal assistance processes. Reliance on such processes may be required, for example, to prove that a benefit or advantage was not legitimately due or that a foreign official was working within their official duties. International legal assistance processes may take time and/or prove unsuccessful, and the investigation/prosecution may be compromised as a result.

I think we can all acknowledge, for example, if there was evidence of an Australian corporation bribing an official in Russia, China or Iran, that there would be very real barriers to having that kind of international cooperation we'd need in order to prove the offence. That doesn't mean we shouldn't be seeking to prosecute offences in those circumstances.

One of the other key changes that is happening in the bill is the proposed new offence of failing to prevent foreign bribery. The law in relation to failure to prevent bribery has really developed in the United Kingdom. Section 7 of the UK Bribery Act 2010 is probably the global standard in this regard. It requires corporations to put measures in their contracting arrangements, employee controls and cost controls that actively prevent the use of funds for the purpose of bribing a foreign official. The extended definition of 'foreign officials' includes candidates for office and the like. The UK Serious Fraud Office has some data about how section 7 has operated in practice and, if you look at the data, it's been reasonably effective. The evidence that we got in the inquiry was that it's led to a change in business practice in the UK. It's led to better practice and stronger controls, moving towards—I don't think it's yet achieved—an anticorruption culture in the UK corporate sector. Obviously we should be picking that up and implementing it in Australia, and this bill—I'm glad to say—does that. That is a good thing.

I'll say this as well, though. Perhaps there's urgent work we should be looking at for some furthering of our anticorruption measures in the corporate space. In 2017, the UK also brought in legislation to make it a corporate offence to prevent the facilitation of tax evasion. That offence was modelled on section 7 of the UK Bribery Act 2010, and I look forward to the coalition bringing forward amendments when we come back to review this in two years also criminalising any corporate efforts to facilitate tax evasion. Clearly that would be a useful further development of law in this area.

There is strong support for this bill amongst a variety of stakeholders. Yes, there are lawyers, like Allens and Linklaters, there is the Law Council of Australia and there's Ashurst Australia. Many of them also support a deferred prosecution scheme. There's also support from the likes of the Uniting Church in Australia. The Synod of Victoria and Tasmania strongly supports these changes, as do Transparency International. So the Greens will be supporting the bill. We won't be supporting the coalition's amendments at this stage in relation to a deferred prosecution scheme. The legislation is incredibly detailed drafting. There is quite a broad definition of the types of offences that may be picked up in the deferred prosecution scheme. The scope of those offences is something that the Greens believe requires some very close study and some very close consideration. I think the kind of scaremongering from some elements in this chamber, that any kind of deferred prosecution scheme is a kind of get out of jail free card for corporate Australia is something that we should treat with very real scepticism. Of course, a badly drafted deferred prosecution scheme could be a get out of jail free card for corporate Australia, and that is something we would absolutely want to avoid. I'm not saying that the coalition amendments fall within that category, but they haven't been properly tested at this point to where we would have a level of comfort to pass them and not see within them some potential misuse by corporate Australia, some potential for a lesser standard for corporate Australia in the scheme.

There are many good reasons to have some form of deferred prosecution scheme in a bill like this. In that regard, I'll read for the record the concerns of the Uniting Church in Australia—again, the Synod of Victoria and Tasmania. They said, in submissions to the inquiry:

The current Government's opposition to DPA schemes appears to rest on the mistaken belief that if DPAs are not offered, then all cases will proceed to prosecution. The reality is that in the absence of a DPA, many corporate crimes carried out by middle managers that would otherwise be self-reported to law enforcement agencies by the corporation itself will go undetected. Those responsible will never go to trial. The experience of other jurisdictions is that a DPA scheme increases the detection of corporate crimes and results in more prosecutions of the individuals inside the corporation that engaged in criminal conduct.

I think there is significant strength in that submission. A well designed, tested DPA scheme has the potential to remedy that defect in the current law. I know that the government says: 'Oh well, we're going to make these changes. We're going to make it easier for prosecutions to stick. We're going to make it easier to prove key elements in it. Let's see how those changes happen before we do that.' That could be seen in some quarters as a delaying tactic. That could be seen in some quarters as just wanting to find a basis on which to say no to a DPA scheme. Nevertheless, we would want to ensure that any DPA scheme that came forward had had that kind of vigorous testing. So we acknowledge the place where those amendments are coming from. We're not in a position to support them now, but we will be supporting that review—a prompt, thorough statutory review. A core element of that will be whether or not the amendments achieve the goal and whether or not we should be rapidly moving towards a DPA scheme.