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

by leave—I move opposition amendments (1) and (3) on sheet 2042 together:

(1) Clause 2, page 2 (table item 1), omit "3", substitute "4".

(3) Page 2 (after line 11), after clause 3, insert:

4 Review of operation of amendments

(1) The Minister must cause a review of the operation of the amendments made by this Act to be conducted as soon as practicable after the end of the period of 18 months starting on the day Part 2 of Schedule 1 to this Act commences.

(2) The persons who conduct the review must give the Minister a written report of the review.

(3) The Minister must cause a copy of the report of the review to be tabled in each House of the Parliament within 15 sitting days of that House after the Minister receives the report.

Senator Pocock moved a second reading amendment that referred to the introduction of a DPA scheme, which is an important issue; however, it only went as far as saying it was worthy of consideration. I will be moving an amendment in the committee stage to formally, not just by way of a second reading amendment, amend the bill to ensure that a scheme is not just worthy of consideration but, indeed, adopted.

The amendments that I have just moved, though—amendments (1) and (3) on sheet 2042—are in relation to a statutory review which the coalition has proposed as part of the bill. This is a very simple and sensible proposition. As I said in my speech in the second reading debate, we support the provisions of the bill that the government has put forward. These are sensible changes to the law which adopt coalition policy from the previous parliament. But we acknowledge, of course, that best practice in this space evolves over time. That is why we have proposed a statutory review. It is a straightforward solution to ensure that the measures are working as intended and it demonstrates our commitment to ensuring that our corporate criminal laws are appropriately calibrated in a rapidly changing world.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Cash, for that contribution. The government will be supporting amendments (1) and (3). Under the deferred prosecution agreement scheme proposed by the former government, companies engaged in serious corporate crime, including foreign bribery, would have been able to negotiate a fine, agree to a set of conditions and have their cases put on indefinite hold, subject to compliance with that agreement. The government will entertain the introduction of a deferred prosecution scheme only after the measures introduced by this bill have been implemented and given time to work.

We do, however, support amending the bill to include a statutory review provision whereby the amendments made by this bill will be reviewed after 18 months. A review will ensure that the measures introduced and debated today can be assessed after an appropriate period and guarantee that companies engaged in serious criminal wrongdoing, like foreign bribery, feel the full force of the law.

I thank senators from the Australian Greens and Senator Pocock as well, who have indicated that they will support the review mechanism. The bill, with these amendments, shows the government's commitment to tackling corruption and, in particular, ensuring that our laws are effective in detecting, investigating and prosecuting foreign bribery.

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

On behalf of the Greens, I indicate we support these two amendments—amendment (1) being a commencement provision and amendment (3) being the review of the operation of the bill's amendments. I was glad to hear in the government's contribution that the review of the operation of the amendments will also include consideration of deferred agreements. We supported Senator David Pocock's second reading amendment to the effect that a proper and prompt review of deferred prosecution agreements would be essential in looking at the efficacy of these amendments. We are grateful that the government is leaning into it. We would hope that the review would, as far as possible, have a public element and seek public submissions, but, in any event, we think a statutory review, which is tabled in the House, to see if what's promised is delivered is a very sensible step forward.

Question agreed to.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to 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?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Thanks, Senator Cash. We've made our position clear, as I outlined in my contribution in committee before. When ordinary Australians commit crimes they feel the full force of the law. However, under the deferred prosecution agreement scheme proposed by the former government, companies that engaged in serious corporate crime, including foreign bribery, would have been able to negotiate a fine, agree to a set of conditions and have their cases put on indefinite hold. The introduction of a DPA scheme should only be entertained after the measures in this bill have been enacted and given time to work, which is why we supported the original amendments. There is universal agreement that the existing foreign bribery offences in the Criminal Code are grossly inadequate, and the government is of the view that the reforms in this bill further enhance Australia's implementation of its obligations under the OECD antibribery convention. Whilst a DPA scheme could encourage companies to self-report foreign bribery, there are existing mechanisms where a country can self-report conduct involving a suspected breach of division 70 of the Criminal Code. The Australian Federal Police website has guidance on self-reporting.

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

Effectively, the answer from the minister is that Australia will just lag behind its overseas peers, because that answer did not address the fact that in comparable jurisdictions, such as the United Kingdom, the US, Canada, France and Singapore, they effectively use deferred prosecution agreement schemes. In particular, as I said, they assist law enforcement by freeing resources to focus on other crimes, noting that—and this is the important part—the average foreign bribery case in the OECD takes over seven years to prosecute. It involves many millions of documents, which you've got to work through, and multiple countries, but it also has uncertain outcomes. When you have the deferred prosecution agreement scheme, you suddenly go from seven years down to getting an outcome. In relation to that success, 671 million pounds in global penalties was paid by Rolls-Royce in 2017. That was a successful DPA scheme. In 2020, Airbus paid 3.6 billion euro in global penalties in multiple different countries. The answer given by the minister does not stack up to the evidence that is actually on the record and, in particular, to the fact that they are already utilised in comparable jurisdictions, and they are getting outcomes. But Australia can just lag behind, and, perhaps later on down the track, we may or may not have a look at a deferred prosecution scheme.

In the context of the failure to prevent offence and the bill's broad definition of an associate, which includes subsidiaries and contractors, a DPA scheme would provide an opportunity for a corporation to self-report in circumstances where it detects foreign bribery conduct by one of its associates. However, self-reporting would not compel the DPP to offer a DPA. It would remain entirely at the DPP's discretion and could be pursued in parallel to a criminal investigation. Given this, why is the government opposed to a measure such as a DPA that could help combat foreign bribery?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Whilst a DPA scheme could encourage companies to self-report foreign bribery, there are existing mechanisms where a company can self-report conduct involving a suspected breach of division 70 of the Criminal Code. The Australian Federal Police website has guidance on self-reporting.

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

I'll indicate, on behalf of the Greens, that we won't be supporting these coalition amendments. We did support the second reading amendment, which indicated our preference for Australia to rapidly adopt a deferred prosecution agreement scheme but to do so after some rigorous review. The amendments that have been brought forward by the coalition, on face value, cover the bulk of the necessary elements for a successful deferred prosecution agreement scheme, but we haven't had the benefit of a thorough consideration of whether or not the offences that are covered by a DPA scheme, which are set out in proposed 17B, are the appropriate set of offences. On one view, they are too narrow. We've heard that from some stakeholders. Another view we've heard from stakeholders is that they're too broad. So we encourage the government to use the statutory review as a way of rapidly and promptly considering this and doing it with due process. I do hear Senator Cash's urging of alacrity on the government, saying: 'You should act now. You've waited too long.'

I will share with the Senate a media release from Norton Rose Fulbright, one of the large global law firms. It says:

The Minister for Justice … has announced that the Australian Coalition Government will today introduce new laws to establish a Deferred Prosecution Agreement as part of a raft of new reforms to Australia's anti-bribery and corruption regime. The introduction of these reforms comes ahead of International Anti-Corruption Day on Saturday and have been announced despite the Senate Economic References Committee being given a further extension to publish its report on the foreign bribery inquiry by 7 February 2018 rather than by 7 December 2017 …

That media release is dated 6 December 2017. So what happened? What happened for five years under the coalition from 2017, when that was introduced? The coalition has been a little bit 'St Augustine' here: 'Oh Lord, give me a deferred prosecution scheme, but just not yet.' So let's get a little bit of historical perspective on some of this political debate. Hopefully, we all want to achieve a successful deferred prosecution scheme. Hopefully, we can use the statutory review to do it, and, hopefully, we can do it in less than seven years.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

Minister, you referred to the fact that there are ways in which companies can self-report. I note that there was a case that occurred last year where an agreement was entered into. It was reported by the Australian Federal Police that a company called Oxiana Ltd, which became part of the OZ Minerals Ltd group, had self-reported actions of foreign bribery in Cambodia, and an agreement had been entered into between that company and the Australian Federal Police. The guidelines for prosecutions were applied, and a total of $9.3 million was paid in both penalties and forfeitures under that agreement. So for all intents and purposes, that was a deferred prosecution agreement. But the difference is that it was made under guidelines which aren't part of the laws of Australia. Wouldn't it be better to have a deferred prosecution scheme made under a bill passed by this parliament, as opposed to agreements, as the agreement was made last year, under guidelines which have not been passed by this parliament?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I've explained the government's position.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

Is the minister aware of the agreement that was entered into between the Australian Federal Police and OZ Minerals last year?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I can recall seeing media attention about it at the time.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

Could the minister explain the difference in principle between the agreement that was entered into by the Australian Federal Police and Oxiana—and its successor corporate body, OZ Minerals—and what is proposed in a very well set out speech by my colleague Senator Cash explaining the logic behind deferred prosecution agreements? What is the difference between what was done last year and what is being proposed by the opposition here, except for the fact that what the opposition is proposing is that a scheme that has actually been passed by this parliament be adopted and implemented, as opposed to being implemented through guidelines? What is the difference?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I have explained the government's position. Obviously, as Senator Shoebridge pointed out, you had years to do something about this in government and did nothing on it. You didn't even bring the legislation forward for debate.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

I note that this self-reporting actually occurred during the course of the coalition government. No doubt the investigative agencies of the Commonwealth government were engaging with OZ Minerals Ltd and its predecessor, Oxiana Ltd, with respect to this act of foreign bribery that was self-reported under the coalition government prior to the change in government. Again, can the minister explain the logic of enabling deferred prosecution agreements under guidelines which have not been legislated, which has occurred during the course of this government—an agreement made for a deferred prosecution under this government, during the term of this government, by the Australian federal police, an agency of this government—as opposed to supporting a legislated scheme where this parliament imposes and considers the process, and the process is done in accordance with an act of law as opposed to guidelines. Please explain the logic.

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

Again, Senator Scarr, I've explained the government position with regard to deferred prosecution agreements. I'm sure that you'll have the opportunity to put in a submission when the review is undertaken, and I'd encourage you to do so.

Paul Scarr (Queensland, Liberal Party) Share this | Link to this | Hansard source

Given that an agency of the government is already entering into deferred prosecution agreements, in effect under guidelines as opposed to law, how many other such agreements does the government propose its agencies will enter into before the review takes place? Will any other of these arrangements occur before this review takes place, as was the one entered into by OZ Minerals Ltd and an agency of the Commonwealth government? What's the government's position with regard to how this area should be regulated and managed up to the point in time of the review? Will there be any other arrangements, such as the one entered into under this government last year? Will there be any other such arrangements entered into?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

That would be a matter for the law enforcement agencies, including the AFP.

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

Minister, stakeholders have raised with me the fact that clause 3 of the guidelines, which I think were signed off on 8 December 2017—that was two days after that media release that I spoke to earlier—provide that the AFP and the CDPP will review the operation of the guidelines within two years, or earlier in the event that a deferred prosecution agreement scheme commences. That's now 6½ years ago. Have the guidelines ever been reviewed? Were they reviewed by the former government at any point? Have they been reviewed by your government at any point? They were novel, they didn't go through any external scrutiny process and they've now actually been tested, so have they ever been reviewed?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

That would be a matter for the AFP.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to 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?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

As I've explained consistently on this, the government will entertain the introduction of a deferred prosecution scheme only after measures introduced in this bill have been implemented and given time to work. That's been consistent from us. I do note, again, that you had a period in government where you could have pursued this. You never actually did it, and you continue to delay it now.

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

Again, Labor recommendation 1.20 in 2020 says, 'Schedules 2 and 3 should be deleted from the bill,' and schedule 2 was actually the deferred prosecution agreement scheme. We didn't have the numbers, so I find those words a little disingenuous.

The problem I have with the position of the government and the position of the Attorney-General is, as I have already stated, that we know that foreign bribery cases take years to prosecute. The figure that is usually quoted is about 7.3 years. Even if this bill passes this week, the commencement provisions mean it most likely won't fully come into force until, say, next year. Then, if we're generous and assume that the offences can be prosecuted in, say—I don't know—five years, as opposed to 7.3 years, then the soonest we would be able to know if these offences actually work is going to be in the 2030s, when you could accept an amendment which the body of evidence shows is already working well in other parts of the world in comparable jurisdictions. The Attorney-General's Department itself when we were in government supported it. The AFP supported it. The body of submitters to the inquiries over time have supported it. If we take the Attorney's words at face value, what Labor will have effectively voted for today is that they won't even entertain a DPA scheme until the 2030s. Guess what, Australia? You will continue to lag behind like-minded jurisdictions.

In 2023 another government agency, Austrade, also backed in a scheme like a DPA scheme. It said:

Whilst prosecution may be an instructive and inevitable consequence of a broadened interpretation of bribery of a foreign official, business could be encouraged to better engage and self-report, seek guidance and legal advice and find the resources to implement effective risk management of their risk of bribery, if given incentive to comply and co-operate.

Do you agree with the advice from Austrade?

Anthony Chisholm (Queensland, Australian Labor Party, Assistant Minister for Education) Share this | Link to this | Hansard source

I haven't seen that, Senator Cash, but I accept what you're putting there. In regard to the deferred prosecution agreement scheme, we've made our position clear in terms of how we think the government wants to proceed. That's why we've supported the amendments we have in this bill.

Michaelia Cash (WA, Liberal Party, Shadow Minister for Employment and Workplace Relations) Share this | Link to 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.

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

We've got the rewriting of history from the coalition about why their bills were never brought on to a vote. The Greens were never tested on it and were always engaged in the deferred prosecution scheme, always engaged in the issue. A little lesson going forward: if you want to find out how parties will vote in the Senate, bring your bills on for a vote. The coalition never did.

Glenn Sterle (WA, Australian Labor Party) Share this | Link to this | Hansard source

The question is that opposition amendments (2) and (4) on sheet 2042, moved by leave together by Senator Cash, be agreed to