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Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017

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2016 - 2017 - 2018

 

 

THE PARLIAMENT OF THE COMMONWEALTH OF AUSTRALIA

 

 

THE SENATE

 

 

crimes legislation amendment (COMBATTING CORPORATE CRIME) bill 2017

 

 

ADDENDUM TO THE EXPLANATORY MEMORANDUM

 

 

 

(Circulated by authority of the Attorney-General, the Hon Christian Porter MP)

 



 

crimes legislation amendment (COMBATTING CORPORATE CRIME) bill 2017

Notes on clauses

Schedule 1—Foreign bribery

Item 7 - After subsection 70.3(2) of the Criminal Code

1.                 On page 16, paragraph 82, after the sentence: ‘If the defendant discharges an evidential burden, the prosecution must disprove those matters beyond reasonable doubt (section 13.1 of the Criminal Code)’, insert:



2.                 This offence-specific defence is appropriate because:



·          The defendant would be in a better position to point to the evidence of the written foreign law he or she relied on when offering or providing the benefit. The defendant could readily provide evidence of the existence of the foreign law and their reliance on it to support their case.

·          It would be difficult for the prosecution to prove the non-existence of a law in a foreign jurisdiction. For example, this would require the prosecution to seek evidence of any written law.

·          The question of whether the benefit was required or permitted under a foreign country's written law is not central to the question of culpability for the offence. The essential elements of the proposed foreign bribery offence are that the defendant provided, offered or caused to be provided or offered, a benefit to another person with the intention of improperly influencing a foreign public official in order to obtain an advantage.

 

3.                 Under the current offence, whether the conduct was lawful in the place it occurs is not an element of the offence. A defendant already bears an evidential burden when seeking to rely on the defence in section 70.3 for conduct lawful in the foreign public official’s country. New subsection 70.3(2A) would only incrementally extend the existing defence to also apply to conduct involving candidates for a foreign public office, ensuring consistency across all categories of foreign public official.

Item 8 — After section 70.5 of the Criminal Code

4.                 On page 19, paragraph 99, after the sentence ‘This is intended to assist companies in implementing appropriate measures to prevent bribery from occurring within their organisations’, insert:

 

5.                 The guidance will be designed to be of general application to corporations of all sizes and in all sectors. It will be principles-based, rather than a checklist of compliance.

Small and medium-sized enterprises would not necessarily be expected to put in place a compliance program of the same size that would be required of a large multi-national company. Similarly, a corporation with limited exposure to foreign bribery risk would not be expected to take mitigation measures as extensive as another corporation that has a significantly greater risk profile.

6.                 On page 19, paragraph 99, after the line ‘This guidance would not be legislative in character, and as such, would not take the form of a legislative instrument’, insert:

 

7.                 Departure from the guidance's suggested procedures would not of itself give rise to a suggestion that a corporation does not have adequate procedures in place. However, businesses would need to implement robust and effective steps to prevent foreign bribery in their circumstances. Companies with effective and well integrated compliance regimes that a court considers adequate would obtain the benefit of the defence contained in new section 70.5A(5).