Senate Committee inquiry into a Bill on foreign bribery and a deferred prosecution agreement scheme

Thursday, 08 February 2018

The AICD has made a submission to the Senate Legal and Constitutional Affairs Committee inquiry into the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017.

In the submission the AICD supported the Bill’s broad aim of overcoming the challenges currently associated with detecting and addressing serious corporate crime. However, we sought to ensure that the changes proposed in the Bill would achieve the reform objective in a fair, reasonable and effective manner, and in accordance with generally accepted legal principles.

In summary, the AICD:

  • broadly supported the amendments proposed to the foreign bribery offence in s 70.2 of the Criminal Code. We expressed the view though that the revised offence would be improved by replacing its novel ‘improperly influencing’ test with a more established dishonesty-based test;
  • commended the policy intention of the proposed new failure to prevent foreign bribery offence, being the provision of more incentives for companies to implement measures to prevent foreign bribery. However, we note our concern with various aspects of proposed s 70.5A, particularly its imposition of absolute liability and reversal of the onus of proof. Our recommendations for the proposed offence included revisiting the definition of ‘associate’, introducing a fault element and placing the onus of proof on the prosecution. We also noted that it would be critically important for the s 70.5C Ministerial guidance on preventing foreign bribery to be consulted on extensively before the failure to prevent offence comes into effect; and
  • generally endorsed the introduction of a deferred prosecution agreement (DPA) scheme for certain corporate crimes, although we recommended that determinations of a material contravention of a DPA be subject to merits review.

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