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Thursday, 13 September 2007
Page: 57

Senator MURRAY (1:04 PM) —The International Trade Integrity Bill 2007 amends the Charter of the United Nations Act 1945, the Customs Act 1901, the Criminal Code Act 1995 and the Income Tax Assessment Act 1997 to implement the Australian government’s response to three of the five recommendations from the Cole inquiry report. Changes to the latter two acts were also in response to some recommendations from the OECD Working Group on Bribery in International Business Transactions. The bill creates new offences for individuals or corporations who engage in conduct that contravenes a United Nations sanction in force in Australia or who provide false or misleading information in connection with United Nations sanctions or who import or export goods sanctioned by the United Nations without valid permission. It requires a person who applies for a licence or other authorisation order under a United Nations sanction to retain all documentation relating to that application for five years. It requires a person who is granted authorisation under United Nations sanction enforcement law to retain all documentation relating to compliance with any conditions to which authorisation is subject for five years. It provides for approvals granted in respect of the expectation of United Nations sanctions to be invalidated if the application contains false or misleading information or omits any relevant matter. It clarifies the circumstances in which a payment to a foreign public official is not a bribe and it aligns the definition of facilitation payment in the Income Tax Assessment Act 1997 with that in the Criminal Code Act 1995.

This bill is the culmination of a long and expensive period of high contention and political and public agitation. The Australian Democrats wholeheartedly and warmly welcome it and are glad it is going to progress into law. However, I would say that, while the bill implements the first three recommendations of the Cole inquiry, there are still two obvious weaknesses which I would like to bring to the government’s attention. I hope in due course that they will pay attention to them and correct them. Given the high stakes in bribery and corruption, there is a case for arguing that the monetary penalties for corporations remain extremely low at $330,000.

I draw the attention of the government to the fact that Transparency International—a very credible, high-profile international organisation with a very strong Australian chapter populated by extremely worthy individuals—has indicated that, in its view, the penalty should more realistically be close to $10 million, especially when you are talking about major corporations with huge financial resources for which $330,000 is just a sniff and does not matter much at all. So I draw your attention to that.

Further, we know from the Cole inquiry how difficult it has been to uncover material matters, even with recently enhanced royal commission powers, which the Democrats fully supported, and particularly when such material is offshore. The public disclosure laws for Commonwealth offences—otherwise known as whistleblower laws, in popular parlance—are of two types. There are those that affect the public sector under section 16 of the Public Service Act and there are those that affect the private sector, principally in the Corporations Act but also in the Workplace Relations Act. They are different in application, process and effect, but both private and public sector whistleblowing are very important in this particular context. Australia’s whistleblowing or public disclosure laws are weak. It is unlikely that these changes will strengthen the resolve of whistleblowers to come forward about corrupt practices. Frankly, your greatest chance of dealing with corruption where it is offshore is in fact to encourage whistleblowers.

This bill does not address other recommendations from the OECD Anti-Bribery Convention or the shortcomings of Australian law in respect of them. The Senate committee that looked into this bill was advised that the OECD Working Group on Bribery in International Business Transactions will not consider Australia’s response before January 2008, which is extremely slow. Corruption and bribery is a matter which needs constant, urgent and immediate attention. With those remarks, which I hope the government will take on board as a constructive recommendation for further effort in this area, the Democrats strongly support this bill.