The Australian Greens thank everyone who made a public submission and/or public representation to this inquiry into the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 (the 2019 Bill).
The Australian Greens broadly support the objectives of this bill, noting its similarity to the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017 (the 2017 Bill), which lapsed on the dissolution of the 45th Parliament.
The significant difference between the 2019 Bill from the 2017 Bill is the inclusion of Schedule 3 – Amendments relating to dishonesty definitions in the Criminal Code.
Concerns regarding this new schedule have been raised in submissions to this inquiry. The Australian Greens share these concerns.
Schedule 3 will replace the 'Feely/Ghosh' definition of dishonesty in the Criminal Code Act 1995 (the Code), which is both objective and subjective, with the purely objective 'Peters' definition. This Peters definition, which if enacted will apply to all forms of theft and deception covered by the Code, only requires an objective test, whereas the Feely/Ghosh definition involves both an objective and a subjective test.
This means not only must a defendant be found to have acted dishonestly according to the standards of ordinary people (the objective test); the defendant must also be found to have known the act was dishonest according to the standards of ordinary people (the subjective test).
In his second reading speech, after introducing the 2019 Bill, Senator Duniam referred to Schedule 3 merely as 'technical amendments'.
However, in his public submission to this inquiry, Prof Jeremy Gans from the Melbourne Law School concluded:
There is nothing 'technical' about the amendments in Schedule 3. The Schedule consists entirely of substantive changes that broaden the reach of two-thirds of the federal dishonesty offences, including offences of general dishonesty, of already broad scope, that were expressly justified by reference to the existing definition of dishonesty.
Prof Gans further argued in evidence provided to the Committee at a public hearing that:
…schedule 3 has not the slightest thing to do with…combating corporate crime. It's a totally separate issue which, to put it colloquially, has been tacked onto this bill.
In evidence also provided at the public hearing, Dr David Neal SC from the Law Council of Australia argued:
…for the principles of the criminal law in general there needs to be an assessment of the moral culpability of a person who's going to be convicted of a dishonesty offence and sentenced, and that this should be premised on the offender knowing his or her conduct is dishonest according to the standards of ordinary people. That is reflected in the existing [Feely/Ghosh] definition of dishonesty found throughout the Criminal Code and is the definition that the Law Council considers ought to be retained.
Prof Gans and Dr Neal both submitted that, as demonstrated by numerous submissions by legal experts and practitioners to various inquiries over the past 25 years, 'the Peters test has been expressly and unequivocally rejected multiple times' (Gans), with 'a very clear majority of submissions favour[ing] the Feely/Ghosh test' (Neal).
The Law Council of Australia has recommended that:
…the bill should not proceed until the current Australian Law Reform Commission inquiry into corporate criminal responsibility is complete [which] is examining in that reference the very issues that underpin the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019.
The Australian Law Reform Commission is due to deliver its report into Australia's corporate criminal responsibility regime to the Attorney-General on 30 April 2020.
This recommendation by the Law Council of Australia is consistent with Prof Gans' recommendation that this 'blanket change…that cuts across multiple past decisions':
…should not be enacted without substantial further consideration.
Recommendation
That the Senate suspend consideration of this bill until after the Attorney‑General has tabled the Australian Law Reform Commission's report into Australia's corporate criminal responsibility.
Senator Nick McKim
Greens Senator for Tasmania