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Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017

The submission to the Senate Legal and Constitutional Affairs Legislation Committee’s inquiry into the Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017 was prepared by the Law Council. The Law Council is grateful for the assistance of the Foreign Corrupt Practices Committee of its Business Law Section and its National Criminal Law Committee in the preparation of this submission. 

Schedule 1 of the Bill would amend the offence of bribery of a foreign public official and introduce a new offence of failure of a body corporate to prevent foreign bribery by an associate. Schedule 2 of the Bill would implement a Commonwealth Deferred Prosecution Agreement (DPA) scheme.

The Law Council supports legislation and other measures that effectively address foreign bribery and corruption. Such measures assist in ensuring the integrity and transparency of international business contracts and preventing the exploitation of vulnerable economies and people. This is consistent with Australia’s obligations under international conventions and the Law Council’s participation in the G20 AntiCorruption Working Group and Action Plan. 

Subject to the issues raised in this submission being addressed, the Law Council supports the:

The Law Council recommends that the proposed new corporate offence of failing to prevent foreign bribery be reconsidered given a number of problematic features of the offence. In the event that it is to proceed, absolute liability should not apply to the corporation and the legal burden of proof on the defendant should be reduced to an evidential burden. In addition, the definition of an ‘associate’ should be reconsidered in a manner more consistent with the Bribery Act 2010 (UK) (UK Bribery Act). The guidance under proposed section 70.5B of the Criminal Code should be developed through a public consultation process.

The Law Council recommends that further consideration be given to removing the requirement of influencing a foreign public official 'in their official capacity'. Expanding the definition along the lines of the UK Bribery Act formulation may be a more effective solution.

You can read the full submission below.

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