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Monday, 2 December 2019
Page: 4715


Senator DUNIAM (TasmaniaAssistant Minister for Forestry and Fisheries and Assistant Minister for Regional Tourism) (15:38): I table the explanatory memoranda relating to the bills and I move:

That these bills be now read a second time.

I seek leave to have the second reading speeches incorporated in Hansard.

Leave granted.

The speeches read as follows—

CRIMES LEGISLATION AMENDMENT (COMBATTING CORPORATE CRIME) BILL 2019

The Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 will amend the Criminal Code and the Director of Public Prosecutions Act 1983 to enhance the tools available to law enforcement and prosecutors to tackle corporate crime.

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.

The opaque and sophisticated nature of corporate crime can make it difficult to identify and easy to conceal through complicated structures and transactions. Investigations into corporate misconduct can be hampered by the need to process large amounts of complex data, including evidence that may be held overseas. Court proceedings can be protracted, expensive, and involve well-resourced corporate defendants.

The measures in the Bill seek to address these challenges and remove undue impediments to the successful investigation and prosecution of foreign bribery cases.

Foreign bribery is an inherently challenging crime to investigate. The OECD has reported that, across all parties to the OECD Anti-Bribery Convention, it takes an average of 7.3 years to conclude foreign bribery cases.

Under the current foreign bribery offence, the prosecution needs to show that both the bribe and the business advantage sought were 'not legitimately due'.

This presents challenges where bribes are concealed as legitimate payments (for instance, agent fees).

To address this, the Bill replaces this requirement with the concept of `improperly influencing' a foreign public official to better reflect the type of conduct involved in foreign bribery. The Bill also amends the definition of `foreign public official' to also include candidates for public office.

The Bill also broadens the scope of the foreign bribery offence to capture bribery conducted to obtain a personal advantage, not just business or a business advantage. This reflects law enforcement experience that bribes can include the bestowal of personal honours, the processing of visa requests, or in relation to reducing personal tax liability.

The Bill further removes the existing requirement that, for the offence to be established, the foreign public official be influenced in the exercise of their official duties. The Bill also clarifies that the offence does not require the accused to have had a specific business or advantage in mind, and that the business or advantage can be obtained for someone else.

Most significantly, the Bill creates a new offence for corporations of failing to prevent foreign bribery, which carries a maximum penalty of either $21 million, 10 per cent of annual turnover, or three times the benefit gained — whichever is greatest.

This measure holds companies directly liable for the foreign bribery activities of their employees, external contractors, agents and subsidiaries, unless the business can demonstrate

The United Kingdom has successfully used a similar offence to prosecute companies in several foreign bribery cases.

To support the introduction of this new offence, guidance material on what constitutes 'adequate procedures' to avoid criminal liability will be developed and published.

I am pleased that today we will also release draft guidance material for public consultation.

The draft Guidance is largely modelled on the UK Government's Guidance that accompanies the 'failure to prevent' offence under section 7 of the UK Bribery Act.

In preparing this guidance, the Government also had regard to existing guidance published by the Australian Trade Commission, the OECD and other international organisations.

This is intended to enable Australian companies that have already framed their anti-bribery policies on international guidelines to easily incorporate additional policies relevant to the Australian context.

Individuals and companies will have until the end of February next year to submit feedback and comments on the guidance. Further information about the consultation process will be provided on the Attorney-General's Department website.

The Bill will also implement a Commonwealth Deferred Prosecution Agreement (DPA) scheme.

The DPA scheme will bolster cooperation between law enforcement agencies and the business community to uncover and deal with corporate crime, and provide a new tool for holding offending corporations to account.

DPAs have been used to tackle corporate crime with significant success in both the United Kingdom and the United States.

Under the DPA scheme, the Commonwealth Director of Public Prosecutions will be able to invite corporations suspected of certain serious corporate criminal offences to negotiate an agreement to comply with a range of specified conditions. If the corporation fulfils its obligations under the DPA, it will not be prosecuted for the offences specified in the DPA.

Because the purpose of the DPA scheme is to tackle corporate crime, a DPA will only be available with respect to one or more of the serious corporate offences specified in the Bill such as foreign bribery, false accounting, dealing with proceeds of crime, money laundering and dishonest conduct offences and sanctions offences. These offences are often difficult to detect, investigate and prosecute.

Under the scheme, the Director of Public Prosecutions will have the discretion to extend a DPA to also apply to additional less serious offences that arise out of the same course of conduct, where it is appropriate to do so..

The scheme provides prosecutors with an additional option in cases where a company is actively cooperating with authorities.

A DPA will not be appropriate in all cases. The DPA scheme strikes a balance between encouraging corporations to self-report misconduct, and ensuring that a DPA does not represent a 'free pass' to corporations that have engaged in serious corporate crime.

The scheme offers corporations an opportunity to avoid some of the reputational and financial costs associated with lengthy investigation and trial processes, but will typically require a party to a DPA to admit to agreed facts, cooperate with any related investigation, pay a financial penalty and implement a compliance program.

Each DPA will be assessed and approved by a former judicial officer to ensure that the DPA is in the interests of justice and that its terms are fair, reasonable and proportionate.

The DPA scheme is a new and innovative approach to combatting corporate crime, and it is important to ensure that stakeholders understand the benefits of the scheme and can inform how it works in practice. As such, the Government will release guidance on the DPA scheme once these provisions are enacted, this guidance will incorporate input and feedback received from public consultations.

Finally, the Bill also makes technical amendments to update the definitions of dishonesty under the Criminal Code to ensure these are aligned with the test endorsed by the High Court in Peters v The Queen (1998).

The amendments in the Bill will strengthen Australia's implementation and enforcement of the OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions and the United Nations Convention against Corruption. At the completion of Australia's Foreign Bribery Phase 4 evaluation in 2017, the OECD noted the major steps Australia had taken in enforcement. Introduction of this Bill will further enhance our enforcement efforts under the Anti-Bribery Convention.

The Government has taken significant steps in recent years to strengthen Australia's response to preventing, detecting and prosecuting foreign bribery and other forms of corporate crime.

In this year's Budget, the Government announced funding of $25.9 million over four years for the Australian Federal Police to strengthen its approach to countering and responding to foreign bribery.

This follows an additional $51.5 million allocated in November 2018 to the Commonwealth Director of Public Prosecutions and the Federal Court of Australia to enable further prosecutions of corporate crime following the Financial Services Royal Commission.

The Government also introduced measures in the Enhancing Whistleblower Protections Act 2019 to encourage stronger corporate compliance and strengthen protections for corporate sector whistleblowers who come forward to report on corporate corruption.

In April this year, the Government commissioned the Australian Law Reform Commission to undertake a comprehensive review of Australia's corporate criminal responsibility regime. It is essential that our laws are effective in holding corporations to account for criminal misconduct by their employees and agents.

The Combatting Corporate Crime Bill further demonstrates that the Government is committed to tackling corporate offending, and to protecting Australia from the corrosive effects of corporate crime.

AGRICULTURE LEGISLATION AMENDMENT (STREAMLINING ADMINISTRATION) BILL 2019

Australia's world-class biosecurity framework has ensured that our $60 billion agricultural industry, local communities and natural environment are protected from the incursion of pests and diseases.

The Agriculture Legislation Amendment (Streamlining Administration) Bill 2019 will assist the efficiency and effectiveness of our biosecurity system, by authorising automated decision making for decisions made by biosecurity officers under the Biosecurity Act 2015 and authorised officers under the Imported Food Control Act 1992. This approach will support deregulation and improve the effectiveness of the biosecurity framework and imported food system.

Australia's biosecurity framework plays a critical role in reducing risk of incursions by pests and diseases. The Department of Agriculture currently processes on average 45,000 commercial cargo referrals and an increasing value of imported foods each month. Australia is currently operating in the peak season for the Brown Marmorated Stink Bug, or BMSB, which entails considerable administrative and manual effort by biosecurity staff and stakeholders, to prevent an incursion of this potentially devastating pest.

The Department is also dedicating intensive resources to prevent African Swine Fever Virus, or ASFV, from entering Australian borders. ASFV poses a significant biosecurity threat to

Australia as it is a highly contagious disease that spreads rapidly through domestic and wild pigs, killing up to 80 per cent of the pigs it infects. As of September 2019, ASFV had reached the shores of our near neighbour East Timor. Other high risk pests include the Khapra beetle and the continued threat posed by foot and mouth disease.

If we do not provide Australia's biosecurity framework with all possible tools to prevent the entry of such high risk pests and diseases, Australia's agricultural industry and world-leading reputation for biosecurity may be irreparably damaged.

This Bill clarifies the legislative basis for the Government to issue directions to importers and brokers arranging the entry of goods and imported food into Australia, through the use of computerised decision-making. Such automated decision making will enable the Government to maximise resources addressing critical risks, and ensure current and planned decision tools can be implemented as efficiently as possible, with minimal impacts on importers.

The Bill will provide the Secretary the power to determine, by legislative instrument, the types of decisions a computer program may make on behalf of a biosecurity officer or an authorised officer. This will allow the Government to adapt to developments in technology and account for future iterations of automated decision making systems. In this, the Bill will provide a platform for immediate and ongoing improvement in regulatory decision-making.

To take into account technical difficulties that may be experienced by computer systems, the Bill also enables a biosecurity officer or an authorised officer to substitute automated decisions where appropriate.

As the government enters the peak pre-Christmas season for cargo referred for inspection, including the increased inspection for ASFV and BMSB, optimising our operational efficiencies is critical. The operational environment of high volumes of goods and people entering Australia, and the potential for negative impact on Australia's agriculture, environment and economy if biosecurity risk or food safety is not effectively identified and managed, mean that it is necessary to provide automated decision-making. The Bill is therefore critical for Australia's biosecurity framework to operate efficiently and effectively for the health and safety of all Australians.

WINE AUSTRALIA AMENDMENT (LABEL DIRECTORY) BILL 2019

Australia is well regarded for our top quality agricultural produce, fine food and wine which makes our exports highly valued by consumers overseas. For wine, the good name of our wine brands is particularly important for showcasing the range of wines we have on offer and building trust with consumers.

Australia is the sixth largest wine producer in the world, and the fifth largest wine exporter. We currently export two thirds of Australian wine produced, adding $2.89 billion to the economy per year. This growth brings enormous benefits to Australian winemaking and growing regions, but it also brings with it the risk that some may seek to unfairly profit off the reputation of others and undermine the integrity of the sector as a whole.

Our robust wine export controls ensure consumers can be confident that they will not only be getting a safe and quality product, but that what the bottle says they are going to get, is what they're getting.

With the Wine Australia Amendment (Label Directory) Bill 2019 we are adding one more tool to Wine Australia's export controls toolkit. The Bill allows Wine Australia to establish the Wine Export Label Directory, a public-facing online database of all Australian wine labels for export.

The Australian wine industry asked for a Label Directory to strengthen the wine export regulatory system administered by Wine Australia to prevent the export of copycat labelled wines, and we are delivering it. While Wine Australia's role does not extend to protection of intellectual property rights, this Bill will better facilitate wine brand owners to protect their own interests.

With our steady growing, high volume and high value wine exports it is no longer a simple case of walking into a liquor store or visiting a key distributor or retailer overseas to ensure copycat labels haven't entered the market. The Label Directory is a simple, modern equivalent.

The Label Directory will allow brand owners to search the database to easily see whether other labels may be seeking to trade off of their intellectual property so they can undertake appropriate civil action against copycat exporters through the Australian legal system. While it is up to them to sort out whether copyright infringement has occurred, we are sending a clear message that trying to take advantage of the reputation of Australian brands is not on.

The Bill will also enable Wine Australia to take into account the behaviour of wine exporters using the Label Directory, in administering licences to export grape products. So when exporters are trying to take advantage of the good name of Australian brands, or are using untruthful or non-compliant labels, Wine Australia can suspend or cancel their licence to export.

The continuing success of Australian wine exports depends on the maintenance of our internationally recognised reputation for quality and integrity that is supported by Wine Australia's regulatory activities. The establishment of the Label Directory by this Bill will better equip Wine Australia to respond to the risks that come with growth in reputation and value overseas, and enable the Australian wine industry to more easily protect themselves.

Debate adjourned.

Ordered that the bills be listed on the Notice Paper as separate orders of the day.