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

by leave—I move opposition amendments Nos (2) and (4) on sheet 2042 together:

(2) Clause 2, page 2 (at the end of the table), add:

(4) Page 13 (after line 14), at the end of the Bill, add:

Schedule 2 — Deferred prosecution agreements

Part 1 — Main amendments

Director of Public Prosecutions Act 1983

1 Before section 1

Insert:

Part 1 — Preliminary

2 Subsection 3(1)

Insert:

approving officer means a person appointed as an approving officer under section 17G.

Commonwealth entity has the same meaning as in the Public Governance, Performance and Accountability Act 2013.

conduct has the same meaning as in the Criminal Code.

deferred prosecution agreement means an agreement mentioned in subsection 17A(1).

DPA (short for deferred prosecution agreement): see deferred prosecution agreement.

secrecy provision means a provision that:

(a) is a provision of a law of the Commonwealth (other than this Act); and

(b) prohibits or regulates the use or disclosure of information.

3 Before section 5

Insert:

Part 2 — Office of the Director of Public Prosecutions

4 After paragraph 6(1)(fa)

Insert:

(fb) to negotiate, enter into, and administer, on behalf of the Commonwealth, deferred prosecution agreements; and

5 After subsection 9(6F)

Insert:

(6G) The Director may, on behalf of the Commonwealth, enter into a DPA and do all things necessary or convenient to be done for or in connection with negotiating, entering into, or administering, a DPA.

6 After subsection 11(2)

Insert:

(2A) Without limiting the generality of subsection (1), directions or guidelines under that subsection may be given or furnished in relation to negotiating, entering into, or administering, deferred prosecution agreements.

7 Before section 18

Insert:

Part 3 — Deferred prosecution agreement scheme

17A Entering into a DPA

(1) The Director may, if the Director considers it appropriate to do so, enter into an agreement, on behalf of the Commonwealth, with a person (other than an individual) for an offence mentioned in section 17B that is specified in the agreement.

(2) Criminal proceedings must not be instituted in a federal court or in a court of a State or Territory against the person in relation to an offence specified in the agreement if the agreement is approved under section 17D.

(3) Subsection (2) does not apply if:

(a) the Director is satisfied that there has been a material contravention of the agreement by the person; or

(b) both of the following apply:

(i) the person provided inaccurate, misleading or incomplete information to a Commonwealth entity in connection with the agreement;

(ii) the person knew, or ought to have known that the information was inaccurate, misleading or incomplete.

17B Offences to which a DPA may relate

(1) A DPA may be entered into in relation to an offence against a provision listed in the following table.

(2) A DPA may be entered into in relation to:

(a) an offence against section 11.1, 11.4 or 11.5 of the Criminal Code that relates to an offence mentioned in subsection (1) of this section; or

(b) an offence prescribed by the regulations for the purposes of this paragraph.

(3) If a DPA is entered into in relation to an offence mentioned in subsection (1) or (2) (the primary offence), the DPA may also be entered into in relation to an offence (the secondary offence) to which all of the following apply:

(a) the secondary offence is likely to arise out of the same course of conduct that constitutes, or may constitute, the primary offence;

(b) the secondary offence has a maximum penalty that is less than the maximum penalty for the primary offence;

(c) the Director is satisfied that it is appropriate to enter into the DPA in relation to the secondary offence.

17C Content of a DPA

(1) A DPA entered into with a person must contain the following:

(a) a statement of facts relating to each offence specified in the DPA;

(b) the last day for which the DPA will be in force;

(c) the requirements to be fulfilled by the person under the DPA;

(d) the amount of financial penalty to be paid by the person to the Commonwealth;

(e) the circumstances which constitute a material contravention of the DPA, including (but not limited to) the following circumstances:

(i) the contravention of a term of the DPA that is specified in the DPA as a significant term;

(ii) a pattern or sequence of contraventions of a term or terms of the DPA that, considered collectively, are significant;

(f) that the person consents, in circumstances mentioned in subsection 17A(3), to the Director instituting a prosecution of the person on indictment for an offence specified in the DPA without the person having been examined or committed for trial.

(2) A DPA entered into with a person may contain any of the following terms:

(a) a term requiring the person to do any of the following:

(i) to compensate victims of an offence specified in the DPA;

(ii) to donate money to a charity or other third party;

(iii) to consent to any relevant orders under the Proceeds of Crime Act 2002 being made in relation to an offence specified in the DPA;

(iv) to implement a compliance program or policies;

(v) to cooperate in any investigation or prosecution relating to a matter specified in the DPA;

(vi) to pay reasonable costs incurred by a Commonwealth entity relating to negotiations for the DPA;

(b) a term setting out the consequences of a failure by the person to comply with any of the terms of the DPA;

(c) any other term that the Director considers appropriate.

(3) A financial penalty for the purposes of paragraph (1)(d) must be of a severity that the Director considers appropriate having regard to all circumstances relating to the DPA, including:

(a) the person's cooperation in negotiations for the DPA; and

(b) the severity of the penalty that may be imposed by a court if the person was convicted of each offence specified in the DPA; and

(c) the inclusion in the DPA of terms of a kind mentioned in subparagraph (2)(a)(i), (ii) or (iii).

(4) Despite paragraph (1)(d), a DPA need not include a financial penalty if the Director is satisfied that there are exceptional circumstances and it is not in the interests of justice to include such a penalty.

17D Approval of a DPA

(1) After the person and the Director agree to the terms of the DPA, the Director must give the following to an approving officer:

(a) the DPA;

(b) a written statement that the Director is satisfied of the matters mentioned in subsection (2).

(2) The Director must be satisfied of the following:

(a) there are reasonable grounds to believe that an offence specified in the DPA has been committed;

(b) entering into the DPA is in the public interest.

(3) The approving officer must review the DPA and decide to either:

(a) approve the DPA; or

(b) not approve the DPA.

(4) The approving officer must approve the DPA if the approving officer is satisfied that:

(a) the terms of the DPA are in the interests of justice; and

(b) the terms of the DPA are fair, reasonable and proportionate.

(5) For the purposes of subsections (3) and (4), an approving officer must assume that the information set out in the DPA is true and correct.

(6) The approving officer must give written notice of the decision to the person and the Director.

(7) If the approving officer approves the DPA, the Director must, within 10 business days after the day notice of the decision is given, publish the DPA on the Office's website.

(8) Despite subsection (7), the Director may do either of the following if the Director considers it appropriate to do so in the interests of justice:

(a) publish a version of the DPA that does not disclose the name of the person or any other material the Director considers should not be disclosed;

(b) not publish the DPA.

(9) Without limiting subsection (8), the Director may publish a version of the DPA, or not publish the DPA, if the Director is satisfied that publishing the full version of the DPA may:

(a) pose a threat to public safety; or

(b) prejudice an ongoing investigation; or

(c) prejudice the fair trial of a person; or

(d) be contrary to an order of a court.

(10) Subsection (8) does not prevent the Director publishing the DPA, or a version of the DPA, at a later time if the Director considers that it would be in the interests of justice to do so.

17E When a DPA is in force

(1) A DPA is in force for the period beginning the day after notice of the approval of the DPA is given as mentioned in subsection 17D(6) and ending on the earliest of the following:

(a) the day specified in the DPA for the purposes of paragraph 17C(1)(b);

(b) if the Director is satisfied that there has been a material contravention of the agreement—the day the person is given notice of the initiation of criminal proceedings of a kind mentioned in subsection 17A(2).

(2) However, if:

(a) a person is given notice as mentioned in paragraph (1)(b); and

(b) a court makes a declaration (however described) that there has not been a material contravention of the agreement;

the agreement is taken not to be in force for the period between the day the person is given the notice and the day the court makes the declaration.

(3) A variation to a DPA takes effect immediately after the day notice of the approval of the variation is given under subsection 17F(2).

(4) To avoid doubt, a DPA ceasing to be in force does not affect the validity of anything done by the Director, or the person, in accordance with the terms of the DPA.

17F Varying a DPA

(1) If the person and the Director agree to a variation to the DPA, the Director must give the DPA as varied to an approving officer.

(2) The approving officer must review the DPA as varied and decide to either:

(a) approve the variation; or

(b) not approve the variation.

(3) However, the approving officer must not approve the variation unless the approving officer is satisfied that:

(a) the terms of the DPA as varied are in the interests of justice; and

(b) the terms of the DPA as varied are fair, reasonable and proportionate.

(4) For the purposes of subsections (2) and (3), an approving officer must assume that the information set out in the DPA as varied is true and correct.

(5) The approving officer must give written notice of the decision to the person and the Director.

(6) If the approving officer approves the variation, the Director must, within 10 business days after the day notice of the decision is given, publish the DPA as varied on the Office's website.

(7) Despite subsection (6), the Director may do either of the following if the Director considers it appropriate to do so in the interests of justice:

(a) publish a version of the DPA as varied that does not disclose the name of the person or any other material that the Director considers should not be disclosed;

(b) not publish the DPA as varied.

(8) Without limiting subsection (7), the Director may publish a version of the DPA as varied, or not publish the DPA as varied, if the Director is satisfied that publishing the full version of the DPA may:

(a) pose a threat to public safety; or

(b) prejudice an ongoing investigation; or

(c) prejudice the fair trial of a person; or

(d) be contrary to an order of a court.

(9) Subsection (7) does not prevent the Director publishing the DPA, as varied or a version of the DPA as varied, at a later time if the Director considers that it would be in the interests of justice to do so.

17G Appointment of approving officers

(1) The Minister may, in writing, appoint a person as an approving officer for the purposes of this Part.

(2) The Minister must not appoint a person as an approving officer unless the Minister is satisfied that:

(a) the person is a former judicial officer of a federal court or a court of a State or Territory; and

(b) the person has the knowledge or experience necessary to properly exercise the powers of an approving officer.

(3) An approving officer holds office for the period specified in the instrument of appointment. The period must not exceed 5 years.

(4) An approving officer is to be paid the remuneration that is determined by the Minister in writing.

(5) A determination made under subsection (4) is not a legislative instrument.

17H Evidence

Admissibility

(1) In civil or criminal proceedings against a person (other than an individual) who is, or was, a party to a DPA, or negotiations for a DPA, none of the following are admissible in evidence against the person:

(a) documents (other than the DPA itself) that indicate the person entered into negotiations for a DPA;

(b) documents (other than the DPA itself) that were created solely for the purpose of negotiating a DPA.

(2) Without limiting subsection (1), the documents include the following:

(a) any record indicating the person entered into negotiations for the DPA;

(b) any record of negotiations for the DPA;

(c) any draft of the DPA (including any draft statement of facts).

(3) Subsection (1) does not apply in the following circumstances:

(a) the circumstances mentioned in subsection 17A(3);

(b) if the person has given evidence in another criminal proceeding or a civil proceeding that is inconsistent with the documents mentioned in subsection (1).

(4) To avoid doubt, this section does not affect the admissibility in evidence of any information or document obtained as an indirect consequence of a disclosure of, or any information contained in, any document mentioned in subsection (1).

Agreed facts

(5) The statement of facts included in the DPA is taken to be agreed facts for the purposes of section 191 of the Evidence Act 1995 in any of the following:

(a) criminal proceedings that are instituted in circumstances mentioned in subsection 17A(3);

(b) proceedings under the Proceeds of Crime Act 2002 that are instituted after criminal proceedings mentioned in paragraph (a).

17J Destroying evidence

(1) A person commits an offence if:

(a) a book, document or thing is relevant to:

(i) negotiating a DPA; or

(ii) assessing compliance with a DPA; and

(b) the person causes the book, document or thing to be prevented from being used in:

(i) negotiating the DPA; or

(ii) assessing compliance with the DPA; or

(iii) evidence in criminal proceedings of a kind mentioned in subsection 17A(2) relating to the DPA.

Penalty:

(a) for an individual—imprisonment for 5 years or 300 penalty units, or both; or

(b) for a body corporate—5,000 penalty units.

(2) The fault element for paragraph (1)(b) is intention.

17K Disclosure of information

(1) This section applies if:

(a) a person is, or was, an official (within the meaning of the Public Governance, Performance and Accountability Act 2013) of a Commonwealth entity; and

(b) the person obtains information of a kind mentioned in subsection (2) (including by a disclosure, or a series of disclosures, under this section).

(2) The information is information (including personal information within the meaning of the Privacy Act 1988) obtained as a direct result of the negotiating, entering into, or administering, of a DPA.

(3) The person may disclose the information (including the personal information) to an authority described in an item of the following table, or an official of such an authority, for a purpose described in that item if:

(a) the person believes on reasonable grounds that the disclosure will serve that purpose; and

(b) a court has not made an order prohibiting the disclosure of the information to the authority for that purpose.

(4) This section applies despite any other secrecy provision, whether enacted before, at or after the commencement of this section.

17L Disclosure and use of certain information

(1) If a provision of a Commonwealth law authorises the disclosure of information to, or the use of information by, a person or authority in relation to a prosecution for an offence, the provision is taken to authorise the disclosure of the information to, or the use of the information by, the person or authority for the purposes of negotiating, entering into or administering a DPA in relation to that offence.

(2) This section applies to a provision of a Commonwealth law whether the provision was enacted before, at or after the commencement of this section.

Part 4 — Director, Associate Director and staff

8 Before section 31

Insert:

Part 5 — Miscellaneous

9 Subsection 31(1)

After "9(6D)", insert ", Part 3".

10 After subsection 31(1A)

Insert:

(1AAA) The Director may, by writing signed by him or her, delegate to a person who:

(a) is a member of the staff of the Office; and

(b) is an SES employee; and

(c) is a legal practitioner;

all or any of the Director's functions or powers under Part 3 (other than those under subsections 17B(3), 17C(4), 17D(8) and 17F(7)).

11 Application provision

The amendments made by this Part apply in relation to conduct occurring before, on or after the commencement of this Part.

Part 2 — Amendment commencing 6 months after date of Assent

Director of Public Prosecutions Act 1983

12 Subsection 17B(1) (table item 5, column headed "Provisions")

After "70.2,", insert "70.5A,".

Part 3 — Consequential amendments to the tax law

A New Tax System (Goods and Services Tax) Act 1999

13 After paragraph 69-5(3)(a)

Insert:

(aa) section 26-7 of the *ITAA 1997 (Deferred prosecution agreements);

Income Tax Assessment Act 1997

14 Section 12-5 (after table item headed "debt interests")

Insert:

15 After section 26-5

Insert:

26-7 Deferred prosecution agreement expenditure

You cannot deduct under this Act a loss or outgoing incurred under a term of a deferred prosecution agreement that is in force under Part 3 of the Director of Public Prosecutions Act 1983.

16 Application provision

(1) The amendments made by this Part (other than item 13) apply in relation to the income year in which Part 1 of this Schedule commences and later income years.

(2) The amendment made by item 13 of this Part applies in relation to the tax period in which Part 1 of this Schedule commences and later tax periods.

Part 4 — Other consequential amendments

Administration Decisions (Judicial Review) Act 1977

17 After paragraph (xa) of Schedule 1

Insert:

(xaa) decisions under Part 3 of the Director of Public Prosecutions Act 1983;

Crimes Act 1914

18 After paragraph 16A(2)(fa)

Insert:

(fb) whether the person entered into a DPA (within the meaning of the Director of Public Prosecutions Act 1983) in relation to the offence and the extent to which the person has complied, or failed to comply, with the terms of the DPA;

19 Application provision

The amendments made by this Part apply in relation to conduct occurring before, on or after the commencement of this Part.

Senator Pocock had brought forward a second reading amendment in relation to this particular issue, but, on this side of the chamber, we were not of the opinion that a DPA scheme in Australia is 'worthy of consideration'. We are actually of the opinion that this is an issue that should not be kicked down the road.

Our amendment is not a second reading amendment. This is an amendment within the committee stage itself, so it does formally amend the bill. It would reinsert a deferred prosecution agreement scheme into the legislation. Why are we moving these amendments? It's because the evidence on this issue is impossible to ignore. When the Senate Legal and Constitutional Affairs Committee looked at this particular version of the bill, they had the benefit of weighty submissions by entities with a respected track record in integrity issues. The committee heard from the Uniting Church Synod of Victoria and Tasmania, Allens Linklaters, the Law Council of Australia and Transparency International Australia. The overwhelming position that has been put forward by these bodies is very, very clear. All of these bodies support a deferred prosecution agreement scheme. But it doesn't actually stop there. If you look at what Austrade said, Austrade itself was clear on its support for measures that incentivise self-reporting which, as we know, is exactly what a DPA scheme is intended to do.

Of course the Senate has previously had the benefit of submissions from the Attorney-General's Department and the Australian Federal Police again supporting a DPA scheme. The OECD Council—the entity that is responsible for overseeing the antibribery convention that we're trying to implement through this legislation—has also expressly recommended that members implement non-trial resolutions and in this case a deferred prosecution agreement scheme. It doesn't stop there. The Australian Institute of Company Directors has also been clear on their support for a deferred prosecution agreement scheme. In fact, when you actually look at the evidence in relation to whether or not this legislation should be amended to include a deferred prosecution agreement scheme, the evidence is nearly unanimous. I would have to say that that is actually quite a rare situation, but it's not hard to see why when you actually read through the justifications for implementing a deferred prosecution scheme.

The arguments for a DPA scheme like the one we have proposed are rooted in evidence, as I said. International experience from partners like the US, the UK, France, Canada, Singapore, Brazil and other countries show that DPA schemes have been highly successful in enforcing corporate criminal laws. They can achieve the same justice outcomes as a successful conviction. They allow punitive requirement of justice to be satisfied. Prosecutors usually secure significant penalties, sometimes involving fines that actually amount to billions of dollars. They also serve, obviously, the corrective purpose. They provide a mechanism that can drive changes to corporate behaviour through measures like enhanced compliance and monitoring programs to ensure the offending cannot happen again. They can also be used to assist in crime prevention and deterrence, for example, by requiring the company to cooperate in prosecuting individuals who themselves have committed offences.

In addition to the above, deferred prosecution agreements have a number of other benefits. They actually incentivise self-reporting, which is a good thing. You actually want people or companies to self-report corporate entities who would otherwise face the uncertainty of litigation and unknown quantum of penalties. They also lead to an increase in detection and prosecution of foreign bribery; I personally would have thought that that was a good thing. The evidence shows that, far from being a get-out-of-jail-free card, they increase prosecutions. They assist law enforcement by freeing up resources to focus on other crimes, noting the average foreign bribery case in the OECD takes over seven years to prosecute. It may involve millions of documents from multiple countries and has uncertain outcomes.

Contrast that with the deferred prosecution agreement. Looking at where deferred prosecution agreements have indeed been successful, in 2017 Rolls-Royce agreed to pay 671 million pounds in global penalties across various jurisdictions for systematic bribery to secure major contracts and falsification of documents. In 2020 Airbus agreed to pay 3.6 billion euros in global penalties under DPAs in multiple different countries for engaging in bribery in Sri Lanka, Indonesia, Taiwan and Ghana relating to corruption in the sale of aeroplanes.

The scheme we are proposing by way of our amendments leverages the benefits I have just referred to. It was carefully put together by the Attorney-General's Department, working with the CDPP and the AFP, under the previous government. So the scheme we are putting forward is not something that has been dreamed up; it is something the Attorney-General's Department themselves put forward as the scheme that should be in place under this legislation, when we were in government. It also, importantly, includes safeguards. Under our amendments, both the Director of Public Prosecutions and an independent former judge, the approving officer, must be satisfied that the terms of a DPA are in the interests of justice and are fair, reasonable and proportionate. The DPA must also be satisfied it is in the public interest to enter into the DPA itself. Importantly—and this is a transparency measure—any deferred prosecution agreement must be published unless doing so would pose a threat to public safety, prejudice an ongoing investigation or fair trial or contravene a court order. The combination of external oversight and public transparency is intended to support public confidence in the proposed scheme.

In light of these sorts of measures, the implacable refusal by the Attorney-General of Australia and the Albanese government to even consider the scheme, quite frankly, just doesn't make sense—given, as I said, the Attorney-General's Department, when we were in government, were the ones that worked with the CDPP and with the AFP and were the ones that put the scheme together. Arguments that Australia is somehow just not ready for a deferred prosecution agreement scheme do not stand up to scrutiny, in particular given the overwhelming weight of the evidence and, as I said, the evidence from so many bodies, which is highly unusual within itself. These are sensible, widely supported amendments that will benefit the Australian public, and I would hope that the government, and perhaps even the Australian Greens, in the time we have before we vote on the amendments are able to give them some further consideration.

Can I just ask the minister this. Deferred prosecution agreement schemes are used effectively in comparable jurisdictions such as the UK, the US, Canada, France and Singapore, and there is considerable evidence highlighting their utility in the context of identified foreign bribery conduct. Why should Australia lag behind its overseas peers?