The Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 (Cth) (the “Bill”) was introduced to the Senate on 2 December 2019, by Senator Duniam,
the Assistant Minister for Forestry and Fisheries and Assistant Minister for Regional
Tourism, with the Bill currently before the Senate. The Bill proposes amendments to:
- Criminal Code Act 1995;
- Director of Public Prosecutions Act 1983;
- Income Tax Assessment Act 1997;
- A New Tax System (Goods and Services Tax) Act 1999;
- Administrative Decisions (Judicial Review) Act 1977; and
- the Crimes Act 1914.
An earlier version of the Bill was introduced in the previous session of Parliament,
but lapsed on the dissolution of Parliament before the Federal Election.
According to the Bill’s Explanatory Memorandum (“EM”), the proposed amendments contain:
“...measures to address challenges associating with detecting and addressing serious
corporate crime. The opaque and sophisticated nature of serious corporate crime can
make it difficult to identify and relatively easy to conceal. Investigations into
corporate misconduct can be hampered by the need to process large amounts of complex
data and conduct lengthy negotiations over claims of legal professional privilege.”
The Bill would introduce a new corporate offence for the failure to prevent the commission
of a foreign bribery offence by an associate of a body corporate. However, the offence
will not apply if the body corporate can show it had adequate procedures in place
designed to prevent the commission of the foreign bribery offence.
Overview of the Proposed Amendments
The proposed amendments are contained in three Schedules.
- Schedule 1 contains the main amendments affecting Criminal Code Act 1995, as well as containing measures to deliver a more effective response to serious corporate
crime by amending the offence of “bribing a foreign public official” in Division 70
to the Criminal Code Act 1995. It also introduces a new offence of failure of a body corporate to prevent foreign
bribery by an associate. Schedule 1 also makes consequential amendments to the Income Tax Assessment Act 1997 and Director of Public Prosecutions Act 1983;
- Schedule 2 implements a Commonwealth Deferred Prosecution Agreements (“DPA”) scheme. Under the
DPA scheme, the Commonwealth Director of Public Prosecutions (“CDPP”) can invite a
person (other than an individual) that has engaged in serious corporate crime, to
negotiate an agreement to comply with a range of specified conditions. Main amendments
are to Director of Public Prosecutions Act 1983 while consequential amendments are to A New Tax System (Goods and Services Tax) Act 1999; Income Tax Assessment Act 1997; Administrative Decisions (Judicial Review) Act 1977 and Crimes Act 1914; and
- Scheduled 3 introduces a general Definition of “dishonest” into the Dictionary to the Criminal Code Act 1995. Under the new Definition, “dishonest” is defined as “dishonest according to the
standards of ordinary people”.
Comment and Reaction to the Bill
Introducing the Bill to Parliament, the Minister said:
“Corporate crime is estimated to cost Australia billions of dollars every year. It
hurts business, our international reputation and our economic wellbeing. In particular.
the harm caused by misconduct was laid bare in the landmark Royal Commission into
the Banking, Superannuation and Financial Services Industry. This has shown us that
we must continuously review and strengthen our enforcement frameworks to ensure early
detection and strong deterrence of corporate wrongdoing.”
Attorney-General and Minister for Industrial Relations Christian Porter said in a
“… foreign bribery needed to be stamped out as it helped to entrench corruption in
developing countries and gave dishonest companies an unfair advantage over their competitors.
Companies that view foreign bribery as simply the cost of doing business overseas
are creating an uneven playing field which unfairly penalises businesses who do the
right thing and play by the rules. This Bill addresses gaps identified by prosecutors
and law enforcement agencies in existing legislation and will make it easier to investigate
bribery offences and secure convictions.”
Mr Porter also noted that the Bill “puts the onus squarely on corporations to get their own houses in
order by encouraging them to put effective controls and safeguards in place to prevent
bribery from happening in the first place” and that the proposed changes outlined
in the Bill “brings Australia into line with many of our major trading partners such
as the United States and Britain, which have already taken significant steps to stamp
out foreign bribery.”
The Attorney-General also cited the following examples where significant penalties were levied against major companies
in overseas jurisdictions:
- Rolls Royce paid financial penalties of approximately $US800 million following actions
against them in the US, UK and Brazil;
- In March 2019, MTS (the largest mobile telecommunications company in Russia) and its
Uzbek subsidiary agreed to pay a combined total penalty of $US850 million to the US;
- In December 2017, Keppel Offshore Marine Ltd and its subsidiary agreed to pay a penalty
of $US422 million to the US, Singapore and Brazil for its involvement arising out
of a decade-long scheme to pay millions of dollars in bribes to officials in Brazil.
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