Commonwealth of Australia Explanatory Memoranda

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CRIMES LEGISLATION AMENDMENT (COMBATTING CORPORATE CRIME) BILL 2017

                                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.
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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).




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