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

Regarding the comments that have been made about the former coalition government, let us be very clear: the coalition is the only party in this debate that has a consistent track record on this issue. The deferred prosecution scheme we proposed was reviewed by this Senate twice before and, despite the words of both the government and the Australian Greens, was actually opposed and delayed by Labor and the Greens. We didn't have the numbers in the Senate. Hello, people! We did not have the numbers in the Senate. Had you wished to work with us to implement this, this could have previously been done and set up. Seriously, a lot of posturing going on about why certain things may not have been done. Both of those parties, Australian Greens and Labor, opposed it when we put it forward when we were in government.

In 2017, the Attorney-General's Department made a submission to a committee of this Senate about the proposal to introduce the same deferred prosecution agreement scheme we are currently proposing with this amendment. It said at the time, on why is a DPA scheme necessary, that law enforcement agencies face particular:

… challenges … with detecting and addressing serious corporate—

criminal offences. It said:

The opaque and sophisticated nature of … corporate crime can make it difficult to identify and … easy to conceal. Investigations into corporate misconduct can be hampered by the need to process large amounts of complex data and … Evidence may be held overseas … Court proceedings can be long and expensive, particularly against well-resourced corporate defendants.

It also said:

The DPA scheme is designed to address these challenges by providing incentives to companies to self-report misconduct—

as Senator Scarr has just referred to—

and assist law enforcement in corporate criminal investigations and prosecutions.

That was the Attorney-General's Department in 2017.

Then we turn to 2020. The AFP made a similar submission to a committee of this Senate saying:

The AFP supports amendments to establish a Deferred Prosecution Agreement … Scheme in Australia that allows the Commonwealth Director of Public Prosecutions … to invite a corporation that has engaged in serious corporate crime to negotiate an agreement and comply with a range of mandatory and optional conditions.

The sophisticated, and organised nature of corporate crime makes it difficult to detect, investigate and prosecute corporate criminal offending, due to mechanisms that conceal conduct. There is a lack of incentive for corporations to cooperate particularly as it relates to obtaining evidentiary material held by the corporation, out of reach from law enforcement. Establishing a DPA scheme will enhance the prospects of cooperation with law enforcement and is expected to lead to greater opportunities to self-report together with providing an additional method for Commonwealth agencies to remediate criminal conduct as it relates to corporate entities or legal persons in Australia. This has the potential to free up investigative resources for other serious offending and provide a mechanism for corporations to address criminal conduct orchestrated by employees without damage to reputation and financial activities that may result from protracted and costly formal court proceedings and conviction.

Again, this is consistent with the Attorney-General's Department's statement, a submission to the Senate in 2017 and a similar submission by the AFP in 2020. These are unequivocal endorsements by the agencies responsible for investigating those offences. What has changed?