Chapter 1 - Introduction

[1]        Journals of the Senate, No. 78, 6 December 2017, p. 2484.

[2]        Journals of the Senate, No. 79, 7 December 2017, pp. 2512–2513.

[3]        Selection of Bills Committee, Report No. 15 of 2017, December 2017, Appendix 6.

[4]        Organisation for Economic Co-operation and Development, Convention on Combating Bribery of Foreign Public Officials in International Business Transactions, 21 November 1997, Article 1.

[5]        Attorney-General's Department, Proposed amendments to the foreign bribery offence in the Criminal Code Act 1995, https://www.ag.gov.au/Consultations/Pages/Proposed-amendments-to-the-foreign-bribery-offence-in-the-criminal-code-act-1995.aspx (accessed 11 January 2018).

[6]        Attorney-General's Department, Proposed amendments to the foreign bribery offence in the Criminal Code Act 1995, https://www.ag.gov.au/Consultations/Pages/Proposed-amendments-to-the-foreign-bribery-offence-in-the-criminal-code-act-1995.aspx (accessed 11 January 2018).

[7]        Attorney-General's Department, Proposed model for a deferred prosecution agreement scheme in Australia, https://www.ag.gov.au/Consultations/Pages/Proposed-model-for-a-deferred-prosecution-agreement-scheme-in-australia.aspx (accessed 11 January 2018).

[8]        Attorney-General's Department, Proposed model for a deferred prosecution agreement scheme in Australia, https://www.ag.gov.au/Consultations/Pages/Proposed-model-for-a-deferred-prosecution-agreement-scheme-in-australia.aspx (accessed 11 January 2018).

[9]        Attorney-General's Department, Proposed model for a deferred prosecution agreement scheme in Australia, https://www.ag.gov.au/Consultations/Pages/Proposed-model-for-a-deferred-prosecution-agreement-scheme-in-australia.aspx (accessed 11 January 2018).

[10]      Attorney-General's Department, Deferred prosecution agreements—public consultation, 2016, https://www.ag.gov.au/Consultations/Pages/Deferred-prosecution-agreements-public-consultation.aspx (accessed 4 January 2018).

[11]      Journals of the Senate, No. 101, 24 June 2015, pp. 2807–2808.

[12]      Journals of the Senate, No. 9, 11 October 2016, p. 173.

[13]      On 20 June 2017, the Senate granted the Economics References Committee an extension to report by 7 December 2017, Journals of the Senate, No. 46, 20 June 2017, p. 1494. On 27 November 2017, the Senate granted the Economics References Committee a further extension to report by 7 February 2018, Journals of the Senate, No. 72, 27 November 2017, p. 2283. On 5 February 2018, the Senate agreed for the Economics References Committee to report by 28 March 2018, Journals of the Senate, No. 80, 7 February 2018, p. 2565.

[14]      Senate Economics Reference Committee, Foreign bribery, March 2018.

[15]      Journals of the Senate, No. 101, 24 June 2015, p. 2807.

[16]      See Senate Economics References Committee, Inquiry into Foreign bribery, submissions received in the 45^th Parliament; Committee Hansard, 7 August 2017; and 31 October 2017.

[17]      EM, p. 1.

[18]      EM, p. 3.

[19]      EM, p. 3.

[20]      Schedule 2, item 7 of the bill which seeks to insert new subsection 17B(1) into the DPP Act that provides a table which lists the offences to which a DPA may relate.

[21]      A New Tax System (Goods and Services Tax) Act 1999 and Income Tax Assessment Act 1997.

[22]      EM, p. 4.

[23]      EM, p. 9.

[24]      Parliamentary Joint Committee on Human Rights, Report 1 of 2018, 13 February 2018, p. 78.

[25]      Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 1 of 2018, 7 February 2018 and Scrutiny Digest 3 of 2018, 21 March 2018.

[26]      Schedule 1, item 7 of the bill which seeks to insert a new subsection 70.3(2A) into the Criminal Code that would provide an additional offence-specific defence (rather than an element of the offence) to the foreign bribery offence in section 70.2.

[27]      Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 1 of 2018, 7 February 2018, pp. 17–20; Senate Standing Committee for the Scrutiny of Bills, Scrutiny Digest 3 of 2018, 21 March 2018, pp. 93–100.

Chapter 2 - Views on the bill

[1]        Criminal Code Act 1995, Division 70.

[2]        Schedule 1, item 4.

[3]        Attorney-General's Department, Submission 7, p. 4.

[4]        Attorney-General's Department, Submission 7, p. 4.

[5]        Australian Institute of Company Directors, submission to AGD 2017 consultation, Proposed amendments to the foreign bribery offence in the Criminal Code Act 1995, p. 5.

[6]        Allens Linklaters, submission to AGD 2017 consultation, Proposed amendments to the foreign bribery offence in the Criminal Code Act 1995, p. 5.

[7]        Allens Linklaters, submission to AGD 2017 consultation, Proposed amendments to the foreign bribery offence in the Criminal Code Act 1995, p. 5.

[8]        BHP Billiton, submission to AGD 2017 consultation, Proposed amendments to the foreign bribery offence in the Criminal Code Act 1995, p. 2.

[9]        Morgan Lewis & Bockius LLP, Submission 3, p. 2.

[10]      Morgan Lewis & Bockius LLP, Submission 3, p. 2.

[11]      15 U.S.C. § 78dd-1(a)(1)-(3).

[12]      Criminal Code Act 1995, ss. 70.2(c).

[13]      Schedule 1, item 3.

[14]      Attorney-General's Department, Submission 7, p. 6.

[15]      Attorney-General's Department, Submission 7, p. 6.

[16]      Law Council of Australia, Submission 6, p. 9.

[17]      Law Council of Australia, Submission 6, p. 9.

[18]      Law Council of Australia, submission to AGD 2017 consultation, Proposed amendments to the foreign bribery offence in the Criminal Code Act 1995, p. 6.

[19]      International Bar Association Anti-Corruption Committee, submission to AGD 2017 consultation, Proposed amendments to the foreign bribery offence in the Criminal Code Act 1995, p. 9.

[20]      Morgan Lewis & Bockius LLP, Submission 3, p. 2; Uniting Church in Australia, Submission 1, p. 2.

[21]      Morgan Lewis & Bockius LLP, Submission 3, pp. 2–3.

[22]      Export Council of Australia, submission to AGD 2017 consultation, Proposed amendments to the foreign bribery offence in the Criminal Code Act 1995, p. 3.

[23]      Law Council of Australia, submission to AGD 2017 consultation, Proposed amendments to the foreign bribery offence in the Criminal Code Act 1995, p. 6; International Bar Association Anti-Corruption Committee, submission to AGD 2017 consultation, Proposed amendments to the foreign bribery offence in the Criminal Code Act 1995, p. 9.

[24]      Criminal Code Act 1995, s. 70.2                                                                                          

[25]      Schedule 1, item 6.

[26]      Schedule 1, item 6.

[27]      Attorney-General's Department, Submission 7, p. 5.

[28]      Attorney-General's Department, Submission 7, p. 5.

[29]      International Bar Association Anti-Corruption Committee, Submission 2, p. 2.

[30]      Australian Institute of Company Directors, Submission 5, p. 1.

[31]      Australian Institute of Company Directors, Submission 5, p. 2.

[32]      The Law Council of Australia, Submission 6, p. 6.

[33]      The Law Council of Australia, Submission 6, p. 7.

[34]      Morgan Lewis & Bockius LLP, Submission 3, p. 2.

[35]      Morgan Lewis & Bockius LLP, Submission 3, p. 2.

[36]      Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 4; EM, pp. 15–16.

[37]      Attorney-General's Department, Submission 7, p. 5.

[38]      Attorney-General's Department, Submission 7, p. 5 [emphasis added].

[39]      Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 4.

[40]      Criminal Code Act 1995, s. 70.2.

[41]      Schedule 1, item 6.

[42]      EM, p. 12.

[43]      Attorney-General's Department, Submission 7, p. 4.

[44]      Attorney-General's Department, Proposed amendments to the foreign bribery offence in the Criminal Code Act 1995, Public Consultation Paper, April 2017, p. 7.

[45]      Uniting Church in Australia, Submission 1, p. 2.

[46]      Control Risks, submission to AGD 2017 consultation, Proposed amendments to the foreign bribery offence in the Criminal Code Act 1995, p. 3; Law Council of Australia, submission to AGD 2017 consultation, Proposed amendments to the foreign bribery offence in the Criminal Code Act 1995, p. 3.

[47]      International Bar Association Anti-Corruption Committee, submission to AGD 2017 consultation, Proposed amendments to the foreign bribery offence in the Criminal Code Act 1995, p. 6.

[48]      Criminal Code Act 1995, Division 12.

[49]      Criminal Code Act 1995, s. 12.2.

[50]      Criminal Code Act 1995, ss. 12.3(2).

[51]      Criminal Code Act 1995, ss. 12.3(6).

[52]      Criminal Code Act 1995, ss. 12.3(6).

[53]      Schedule 1, item 2.

[54]      EM, p. 12.

[55]      EM, p. 18.

[56]      Attorney-General's Department, Submission 7, p. 8.

[57]      Attorney-General's Department, Submission 7, p. 7.

[58]      See for example, Uniting Church in Australia, Submission 1; International Bar Association Anti-Corruption Committee, Submission 2; Dr Vivienne Brand, Submission 4.

[59]      Dr Vivienne Brand, Submission 4, p. 1.

[60]      Uniting Church in Australia, Submission 1, p. 4.

[61]      Australian Institute of Company Directors, Submission 5, p. 2.

[62]      Australian Institute of Company Directors, Submission 5, p. 4.

[63]      The Law Council of Australia, Submission 6, pp. 7–9.

[64]      Professor Simon Bronitt and Ms Zoe Brereton, Submission 8, pp. 7–8

[65]      Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 8.

[66]      Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 8.

[67]      Uniting Church in Australia, Submission 1, p. 4.

[68]      International Bar Association Anti-Corruption Committee, Submission 2, p. 3.

[69]      Attorney-General's Department, Submission 7, p. 8.

[70]      Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 7.

[71]      Attorney-General's Department, Submission 7, p. 9.

[72]      Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 3.

[73]      Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 17.

[74]      Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 17.

[75]      Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 17.

[76]      Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 16.

[77]      Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 16.

[78]      Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 16.

[79]      Schedule 1, item 8.

[80]      Law Council of Australia, Submission 6, p. 9.

[81]      Attorney-General's Department, Submission 7, pp. 8–9.

[82]      Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 10.

[83]      Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 12.

[84]      Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 12.

[85]      Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 12.

[86]      Associate Professor Vivienne Brand, Submission 4, p. 2.

[87]      Associate Professor Vivienne Brand, Submission 4, pp. 2–3.

[88]      UK Ministry of Justice, The Bribery Act 2010: Guidance about procedures which relevant corporations can put in place to prevent persons associated with then from bribing (section 9 of the Bribery Act 2010), p. 22, paragraph 1.7,  https://www.justice.gov.uk/downloads/legislation/bribery-act-2010-guidance.pdf (accessed 14 March 2018).

[89]      UK Ministry of Justice, The Bribery Act 2010: Guidance about procedures which relevant corporations can put in place to prevent persons associated with then from bribing (section 9 of the Bribery Act 2010), p. 23, https://www.justice.gov.uk/downloads/legislation/bribery-act-2010-guidance.pdf (accessed 14 March 2018).

[90]      UK Ministry of Justice, The Bribery Act 2010: Guidance about procedures which relevant corporations can put in place to prevent persons associated with then from bribing (section 9 of the Bribery Act 2010), p. 23, paragraph 2.3, https://www.justice.gov.uk/downloads/legislation/bribery-act-2010-guidance.pdf (accessed 14 March 2018).

[91]      UK Ministry of Justice, The Bribery Act 2010: Guidance about procedures which relevant corporations can put in place to prevent persons associated with then from bribing (section 9 of the Bribery Act 2010), p. 23, paragraph 2.3, https://www.justice.gov.uk/downloads/legislation/bribery-act-2010-guidance.pdf (accessed 14 March 2018).

[92]      Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 15.

[93]      Schedule 2, item 7, ss. 17A(1).

[94]      Schedule 2, item 7, ss. 17B(1) includes a table that lists the offences to which a DPA may relate.

[95]      Schedule 2, item 7, ss. 17B.

[96]      Attorney-General's Department, Improving enforcement options for serious corporate crime: Consideration of a Deferred Prosecution Agreements scheme in Australia, March 2016, p. 9, https://www.ag.gov.au/consultations/Pages/Deferred-prosecution-agreements-public-consultation.aspx (accessed 11 December 2017).

[97]      Schedule 2, item 7, ss. 17C(1).

[98]      Schedule 2, item 7, ss. 17C(2).

[99]      Schedule 2, item 7, ss. 17D(1)—(6).

[100]    Schedule 2, item 7, ss. 17D(1)—(2).

[101]    Schedule 2, item 7, s. 17F.

[102]    Schedule 2, item 7, ss. 17D(7)—(10). See also Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 29.

[103]    Schedule 2, item 7, s. 17H.

[104]    Schedule 2, item 7, s.17A. See also, EM, p. 3.

[105]    EM, p. 3.

[106]    Morgan Lewis & Bockius LLP, Submission 3, p. 5.

[107]    Uniting Church in Australia, Submission 1, pp. 5–6.

[108]    International Bar Association Anti-Corruption Committee, Submission 2, p. 3; Law Council of Australia, Submission 6, p. 10.

[109]    Professor Simon Bronitt and Ms Zoe Brereton, Submission 8, p. 3.

[110]    Uniting Church in Australia, Submission 1, pp. 1 and 11.

[111]    Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 25.

[112]    Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 26.

[113]    Attorney-General's Department, answers to questions on notice, p. 26.

[114]    In the United Kingdom the statement of facts is treated as an admission of fact by the corporation in any criminal proceedings brought against a corporation for the offences specified in the DPA. See s. 10 of the United Kingdom's Criminal Justice Act 1967 and Schedule 17, s. 13 of the United Kingdom's Crime and Courts Act 2013.

[115]    Schedule 2, ss. 17H(5).

[116]    Morgan Lewis & Bockius LLP, Submission 3, p. 6.

[117]    Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 30.

[118]    International Bar Association's Anti-Corruption Committee, Submission 2, p. 3.

[119]    International Bar Association's Anti-Corruption Committee, Submission 2, p. 4.

[120]    Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 28.

[121]    Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 28.

[122]    Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 28.

[123]    Morgan Lewis & Bockius LLP, Submission 3, p. 8.

[124]    Morgan Lewis & Bockius LLP, Submission 3, pp. 1 and 8.

[125]    Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 33.

[126]    Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 33.

[127]    King & Wood Mallesons, Mr Neville Tiffen, Norton Rose Fulbright, Responses to AGD, Proposed model for a deferred prosecution agreement scheme in Australia, 2017, https://www.ag.gov.au/Consultations/Pages/Proposed-model-for-a-deferred-prosecution-agreement-scheme-in-australia.aspx (accessed 4 January 2017).

[128]    King & Wood Mallesons, Response to AGD, Proposed model for a deferred prosecution agreement scheme in Australia, 2017, p. 2, https://www.ag.gov.au/Consultations/Pages/Proposed-model-for-a-deferred-prosecution-agreement-scheme-in-australia.aspx  (accessed 4 January 2018).

[129]    AFP and CDPP Best Practice Guidelines, Self-reporting of foreign bribery and related offending by corporations, 8 December 2017, https://www.cdpp.gov.au/sites/g/files/net2061/f/20170812AFP-CDPP-Best-Practice-Guideline-on-self-reporting-of-foreign-bribery.pdf (accessed 12 February 2018).

[130]    CDPP, Best Practice Guideline: Self-reporting of foreign bribery and related offending by corporations, 8 December 2017, https://www.cdpp.gov.au/sites/g/files/net2061/f/20170812AFP-CDPP-Best-Practice-Guideline-on-self-reporting-of-foreign-bribery.pdf (accessed 13 March 2018).

[131]    International Bar Association's Anti-Corruption Committee, Submission 2, p. 3.

[132]    AFP and CDPP Best Practice Guidelines, Self-reporting of foreign bribery and related offending by corporations, 8 December 2017, p. 2, paragraph 3, https://www.cdpp.gov.au/sites/g/files/net2061/f/20170812AFP-CDPP-Best-Practice-Guideline-on-self-reporting-of-foreign-bribery.pdf (accessed 12 February 2018).

[133]    Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 25.

[134]    Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 25.

[135]    Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 25.

[136]    Attorney-General's Department, answers to questions on notice (received 7 March 2018), p. 38.

Senator Rex Patrick - Additional Comments: To publish or not to publish–there is no question

[1]        Senate Economics References Committee, Committee Hansard, Melbourne, 10 April 2015, p. 13.

[2]        Schedule 2, Item 7, subsection 17C(1)

[3]        Schedule 2, Item7, subsection 17D(8)

[4]        For example, section 1043A of the Corporations Act 2001 would be disclosed if a DPA is entered into in relation to an offence of insider trading.