Coalition Senators note the majority report and the issues raised in the
serious matter of foreign bribery.
Coalition Senators note that corporate crime and foreign bribery are
Coalition Senators also note the current difficulties in achieving
successful prosecutions and the need to strengthen Australia's foreign bribery
Coalition Senators however note that some comments in the minority
report represent an overreach in some of its criticisms.
Coalition Senators note the significant reforms by the government to
crack down on foreign bribery and note that the government has taken action
since 2013 in response to the Phase 3 OECD Report and Phase 3 OECD Follow-up Report
in 2012 and 2015 respectively.
Coalition Senators also note that many of the reforms underway were
instigated as a result of difficulties faced in attempted prosecutions in
Coalition Senators note that the Crimes Legislation Amendment (Combatting
Corporate Crime) Bill 2017 (CCC bill) currently before the Senate seeks to
remove impediments to the successful investigation and prosecution of foreign
bribery by enhancing Australia's foreign bribery offences and introducing a
deferred prosecution agreement (DPA) scheme.
Coalition Senators note that the Phase 4 OECD Report in December 2017
was largely positive.
Coalition Senators also note that the majority of recommendations
already reflect the government's stated intention.
Chapter 3—Investigation and enforcement
Regarding Recommendation 3 and further to the majority report's
committee comments, Coalition Senators note the significant resourcing provided
to those agencies in recent years, including a $321 million injection of
funding in the
2017—2018 federal Budget to provide the Australian Federal Police (AFP) with
the resources necessary to be more agile in responding to emerging criminal
threats. This represents the biggest injection into the AFP's domestic
capability in over a decade. This is in addition to the $15 million funding to
support the Fraud and
Anti-Corruption Centre, announced in 2016.
Coalition Senators note that that the Phase 4 OECD Report into the
United Kingdom raised concerns about their blockbuster funding model, with the
The lead examiners further consider that blockbuster funding
may lead to perceived, if not real, influence of the executive over law
Taking into account these factors, Coalition Senators note the majority
report recommendation that alternative approaches such as this model are worthy
Chapter 4—Reforming the foreign bribery offence
Coalition Senators feel that the following statements in paragraphs 4.13
and 4.37 of the majority report, as well as similar comments made throughout
the report, do not provide accurate representations: 'The committee is
concerned that the government has delayed taking action to close this potential
loophole' and 'the committee considers that the government's action to close
this potential loophole is overdue'.
Coalition Senators note that the previous Labor Government did not amend
these specific elements of the foreign bribery offences.
Chapter 5—Encouraging self-reporting by corporations—A deferred prosecution
Regarding Recommendation 12, Coalition Senators note the recommendation
that deferred prosecution agreements (DPAs) be published. However, further
consideration should be given by the government as to the specific
circumstances where it would be in the public interest to do so.
Coalition Senators consider that the requirement to publish all details
on how a company has complied with the terms and conditions of a DPA, as well
as any breach, could place a significant administrative burden on the Commonwealth
Director of Public Prosecutions (CDPP).
Chapter 6—Protecting whistleblowers who expose foreign bribery
Coalition Senators disagree with Recommendations 15 and 16 on the
grounds that the government recently introduced Treasury Laws Amendment (Enhancing
Whistleblower Protections) Bill 2017 (EWP bill) in the Senate. The Government
has consulted with a number of stakeholders, including the expert panel, in
forming this legislation.
Coalition Senators note that the Senate Economics Legislation Committee
recently endorsed the passage of the EWP bill in its current form.
Chapter 7—The facilitation payment defence
Coalition Senators disagree with Recommendation 18 of the majority
report and note the Attorney-General's Department's advice to the Senate Legal
and Constitutional Affairs Committee inquiry into the Crimes Legislation
Amendment (Combatting Corporate Crime) Bill 2017 (CCC bill), in its answers to questions
on notice received on 7 March 2018:
Operational experience has indicated that the facilitation
payment defence has not been an impediment to the enforcement of the foreign
Coalition Senators also note that facilitation payment defences are not
prohibited under the OECD Anti-Bribery Convention and also that the United
States and New Zealand retain facilitation payment defences. Further, Coalition
Senators note that the facilitation payment defence in Australia is narrower
than that of the United States, in that it requires in paragraph 70.4(1)(a)
that the value of the benefit is of a 'minor nature' and in paragraph 70.4(1)(b)
that the conduct was related to a routine government action of a 'minor nature'.
Coalition Senators are open to the majority report's view that the
facilitation payments defence should be reviewed but also recognise that the government
is implementing significant reforms to Australia's foreign bribery legal
framework. In particular, the CCC bill contains the introduction of a failure
to prevent foreign bribery offence and the broadening of the foreign bribery
offence to cover bribery to obtain a personal benefit.
Chapter 8—Other reform options
Coalition Senators take issue with the statement at paragraph 8.81:
However, the committee is concerned that the government has
rushed to issue the long-awaited Guidelines for self-reporting in response to
the OECD's feedback in the Phase 4 OECD report.
Coalition Senators note that:
- the Phase 4 OECD Report was published on 15 December 2017;
the Guidelines for self-reporting were published by the AFP and
CDPP on 7 December 2017;
this means that the Guidelines for self-reporting were published
before the Phase 4 OECD Report was published; and
therefore the publishing of the guidelines was not a response to
the OECD's feedback.
Coalition Senators disagree with Recommendation 19 on the grounds that
the government is already progressing with a beneficial ownership register for
Regarding Recommendation 20, Coalition Senators support a requirement
for suppliers to disclose convictions for foreign bribery and a power for
agencies to debar such firms from future procurement, where appropriate.
However, procurement rules should not address foreign bribery in
isolation, as a distinct element of the procurement framework. It is appropriate
that firms found guilty of other high consequence illegal behaviour should also
be handled in a consistent way, for instance where they were convicted of
commercial fraud, market collusion, and other forms of serious or criminal
Whatever mechanisms are identified to address these issues and concerns,
consideration must be given to ensure that any requirement does not
unreasonably add burden and red-tape to procurers or businesses, noting the
majority of businesses are law-abiding corporations. Accordingly any disclosure
obligation built into the procurement process should consistently capture any
forms of serious illegal behaviour, not just foreign bribery in isolation. It
would not be best regulatory practice to impose red-tape on law-abiding firms
requiring them to establish internal processes to prevent remote likelihood
events. Conversely, it should be noted that where a firm has conspired with
foreign officials to break the law, a self-disclosure regime may not be a
reliable mechanism to uncover evidence of such practices.
Senator Jane Hume Senator
Deputy Chair Senator
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