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

Obviously we are back to 'this is the government's position' and, regardless of the weight of evidence and, in particular, as I said, the submissions that have been put forward over a period of time now in relation to the adoption by Australia of a deferred prosecution agreement scheme and the fact that like-minded jurisdictions are actually doing well and are actually getting results under a deferred prosecution agreement scheme, we literally have the government behaving like an ostrich with its head in the sand. In its submission to the Senate committee—just to ensure that we hear all of the evidence in relation to why we should have a deferred prosecution agreement scheme in Australia, if you're actually serious here about combatting foreign bribery—this is what the Uniting Church synod of Victoria and Tasmania said:

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—

Here's the word—

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.

My question to the minister would've been: do you agree with what the Uniting Church has said—that, without a DPA scheme, many corporate crimes will never be prosecuted? But, obviously, I already know what the answer is: the government will not be proceeding with one. It's put its reasons on the record.

In it submission to the committee on this bill, this is what Allens Linklaters said:

Allens maintains its strong support for the introduction of a DPA scheme, in line with our earlier comments as well as—

Lo and behold—

international best practice.

Let's not worry about that!

We remain of the view that DPAs can provide an effective and efficient means of addressing corporate misconduct in suitable cases.

They then go on, though, to make two additional points which are quite salient:

DPA schemes have the potential to increase self-reporting by corporates, and therefore bolster enforcement efforts by the AFP and CDPP. As DPA schemes incentivise self-reporting, efficiency and cooperation, it is likely that the introduction of such a scheme in Australia would see an increase in self-reporting, and therefore assist in addressing the current difficulties and delays suffered by the AFP and CDPP in gathering information and evidence through mutual assistance programs.

Personally, I would've thought that is actually a compelling reason to put in place a DPA scheme. They also say:

DPA schemes have the potential to facilitate more expeditious resolutions of foreign bribery investigations and prosecutions. In our firsthand experience, major foreign bribery investigations can take five to ten years to resolve. The inherent uncertainty of outcomes inherent in contested criminal proceedings, and the risk proceeding to trial carriers for both a prosecuting agency and a corporate defendant is a major contributor to this. DPA schemes have the potential to create greater certainty of outcome for corporates, while ensuring appropriate penalties are still imposed.

Again, though—ostrich, head in the sand—this government is not interested.

In its submission to the committee on this bill, this is what Transparency International Australia said:

The experience of the US and UK is that a DPA scheme increases detection and results in more prosecutions of foreign bribery and other criminal offences.

This is Transparency International Australia. They are the people devoted to transparency, which I thought this government was allegedly meant to believe in. They, Transparency International Australia, have expressly recommended that a DPA scheme be introduced, yet the government is turning its back on the recommendation from Transparency International Australia. So much for transparency!

In its submission to the committee on this bill, the Law Council—now, the Law Council, seriously, they actually do know what they're talking about—expressly recommended the adoption of a DPA scheme. It said:

… the Law Council continues to support the adoption of a Deferred Prosecution Agreement (DPA) scheme as a means of addressing corporate criminal activity that may avoid some of the cost, delay and uncertainty of traditional criminal prosecutions.

When you look at the expert evidence received by the committee that looked at this bill, putting aside the other committees that have also looked into deferred prosecution agreements under the former coalition government, every single body that made a submission about this bill—bar one body, but they did not mention it—either supports or has supported a DPA scheme. What is the point of having the committee inquiry if the overwhelming body of evidence—all but one, who didn't mention it—says the government should implement a deferred prosecution scheme? It is a near-unanimous weight of evidence, yet what we have is a government that just says, 'We're not going to.'

I am sure the Attorney is well aware—he would have to be, because officers read the submissions and the Attorney-General's Department would have told him—of the widespread support for DPA schemes across the legal profession and also civil society. The truth is that this government is opposing good, sensible policy because, let's face it, it came from the coalition. Last time we were in government they didn't like it either. Now the government, particularly in relation to the body of stakeholders that put forward the evidence, is in the embarrassing position of having to explain to the Australian people why—because this is all about the Australian people and making sure they get back what they are entitled to—they can't enjoy the benefits of a policy that leads to an increase in prosecutions and better outcomes in fighting corporate crime. That is what we are talking about. We are talking about better outcomes in fighting corporate crime.

The sad reality—and this will shortly go to a vote—is that the Australian people are in that position because the Australian Labor Party, particularly this Attorney-General, have put the political tactics of the Labor Party ahead of the interests of the Australian people. That is quite sad.