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This is a Bill, not an Act. For current law, see the Acts databases.
2019
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Crimes Legislation Amendment
(Combatting Corporate Crime) Bill 2019
No. , 2019
(Attorney-General)
A Bill for an Act to amend legislation relating to the
criminal law and law enforcement, and for related
purposes
No. , 2019
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
i
Contents
1
Short title ........................................................................................... 1
2
Commencement ................................................................................. 1
3
Schedules ........................................................................................... 3
Schedule 1--Amendments relating to foreign bribery
4
Part 1--Main amendments
4
Criminal Code Act 1995
4
Part 2--Other amendments
13
Director of Public Prosecutions Act 1983
13
Income Tax Assessment Act 1997
13
Schedule 2--Amendments relating to deferred prosecution
agreements
15
Part 1--Main amendments
15
Director of Public Prosecutions Act 1983
15
Part 2--Consequential amendments to the tax law
28
A New Tax System (Goods and Services Tax) Act 1999
28
Income Tax Assessment Act 1997
28
Part 3--Other consequential amendments
29
Administrative Decisions (Judicial Review) Act 1977
29
Crimes Act 1914
29
Schedule 3--Amendments relating to dishonesty definitions in
the Criminal Code
30
Criminal Code Act 1995
30
No. , 2019
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
1
A Bill for an Act to amend legislation relating to the
1
criminal law and law enforcement, and for related
2
purposes
3
The Parliament of Australia enacts:
4
1 Short title
5
This Act is the
Crimes Legislation Amendment (Combatting
6
Corporate Crime) Act 2019.
7
2 Commencement
8
(1) Each provision of this Act specified in column 1 of the table
9
commences, or is taken to have commenced, in accordance with
10
column 2 of the table. Any other statement in column 2 has effect
11
according to its terms.
12
2
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
No. , 2019
1
Commencement information
Column 1
Column 2
Column 3
Provisions
Commencement
Date/Details
1. Sections 1 to 3
and anything in
this Act not
elsewhere covered
by this table
The day this Act receives the Royal Assent.
2. Schedule 1,
Part 1
The day after the end of the period of 6
months beginning on the day this Act
receives the Royal Assent.
3. Schedule 1,
item 11
The day after the end of the period of 6
months beginning on the day this Act
receives the Royal Assent.
4. Schedule 1,
items 12 to 15
The first 1 January, 1 April, 1 July or
1 October to occur after the end of the
period of 6 months beginning on the day this
Act receives the Royal Assent.
5. Schedule 2,
Part 1
The day after this Act receives the Royal
Assent.
6. Schedule 2,
Part 2
The first 1 January, 1 April, 1 July or
1 October to occur after the day this Act
receives the Royal Assent.
7. Schedule 2,
Part 3
The day after this Act receives the Royal
Assent.
8. Schedule 3
The day after this Act receives the Royal
Assent.
Note:
This table relates only to the provisions of this Act as originally
2
enacted. It will not be amended to deal with any later amendments of
3
this Act.
4
(2) Any information in column 3 of the table is not part of this Act.
5
Information may be inserted in this column, or information in it
6
may be edited, in any published version of this Act.
7
No. , 2019
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
3
3 Schedules
1
Legislation that is specified in a Schedule to this Act is amended or
2
repealed as set out in the applicable items in the Schedule
3
concerned, and any other item in a Schedule to this Act has effect
4
according to its terms.
5
Schedule 1
Amendments relating to foreign bribery
Part 1
Main amendments
4
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
No. , 2019
Schedule 1--Amendments relating to foreign
1
bribery
2
Part 1--Main amendments
3
Criminal Code Act 1995
4
1 Before section 70.1 of the
Criminal Code
5
Insert:
6
Subdivision A--Definitions
7
2 Section 70.1 of the
Criminal Code
8
Insert:
9
advantage
means an advantage of any kind and is not limited to
10
property.
11
annual turnover
has the meaning given by section 70.5C.
12
associate
: a person is an
associate
of another person if the
13
first-mentioned person:
14
(a) is an officer, employee, agent or contractor of the other
15
person; or
16
(b) is a subsidiary (within the meaning of the
Corporations Act
17
2001
) of the other person; or
18
(c) is controlled (within the meaning of the
Corporations Act
19
2001
) by the other person; or
20
(d) otherwise performs services for or on behalf of the other
21
person.
22
3 Section 70.1 of the
Criminal Code
(definitions of
benefit
and
23
business advantage
)
24
Repeal the definitions.
25
4 Section 70.1 of the
Criminal Code
(at the end of the
26
definition of
foreign public official
)
27
Add:
28
Amendments relating to foreign bribery
Schedule 1
Main amendments
Part 1
No. , 2019
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
5
; or (m) an individual standing, or nominated, (whether formally or
1
informally) as a candidate to be a foreign public official
2
covered by any of paragraphs (a) to (k) of this definition.
3
5 After section 70.1 of the
Criminal Code
4
Insert:
5
Subdivision B--Bribery of foreign public officials
6
6 Section 70.2 of the
Criminal Code
7
Repeal the section, substitute:
8
70.2 Bribing a foreign public official
9
(1) A person commits an offence if:
10
(a) the person:
11
(i) provides a benefit to another person; or
12
(ii) causes a benefit to be provided to another person; or
13
(iii) offers to provide, or promises to provide, a benefit to
14
another person; or
15
(iv) causes an offer of the provision of a benefit, or a
16
promise of the provision of a benefit, to be made to
17
another person; and
18
(b) the first-mentioned person does so with the intention of
19
improperly influencing a foreign public official (who may be
20
the other person) in order to obtain or retain business or a
21
business or personal advantage (whether or not for the
22
first-mentioned person).
23
Note:
See also section 70.2A. For defences see sections 70.3 and 70.4.
24
(2) For the purposes of paragraph (1)(b):
25
(a) the first-mentioned person does not need to intend to
26
influence a particular foreign public official; and
27
(b) the first-mentioned person does not need to intend to obtain
28
or retain particular business or a particular business or
29
personal advantage; and
30
(c) business, or a business or personal advantage, does not need
31
to be actually obtained or retained.
32
Schedule 1
Amendments relating to foreign bribery
Part 1
Main amendments
6
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
No. , 2019
Penalty for individual
1
(3) An offence against subsection (1) committed by an individual is
2
punishable on conviction by imprisonment for not more than 10
3
years, a fine not more than 10,000 penalty units, or both.
4
Penalty for body corporate
5
(4) An offence against subsection (1) committed by a body corporate
6
is punishable on conviction by a fine not more than the greatest of
7
the following:
8
(a) 100,000 penalty units;
9
(b) if the court can determine the value of the benefit that the
10
body corporate, and any body corporate related to the body
11
corporate, have obtained directly or indirectly and that is
12
reasonably attributable to the conduct constituting the
13
offence--3 times the value of that benefit;
14
(c) if the court cannot determine the value of that benefit--10%
15
of the annual turnover of the body corporate during the
16
period (the
turnover period
) of 12 months ending at the end
17
of the month in which the body corporate committed, or
18
began committing, the offence.
19
70.2A Improper influence
20
Determination to be a matter for the trier of fact
21
(1) In a prosecution for an offence against section 70.2, the
22
determination of whether influence is improper is a matter for the
23
trier of fact.
24
Matters that must be disregarded
25
(2) In determining whether influence is improper for the purposes of
26
paragraph 70.2(1)(b), a trier of fact must disregard the following:
27
(a) the fact that the benefit, or the offer or promise to provide the
28
benefit, may be, or be perceived to be, customary, necessary
29
or required in the situation;
30
(b) any official tolerance of the benefit;
31
Amendments relating to foreign bribery
Schedule 1
Main amendments
Part 1
No. , 2019
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
7
(c) if particular business or a particular business or personal
1
advantage is relevant to proving the matters referred to in that
2
paragraph--the following:
3
(i) if the value of the business or advantage is
4
insignificant--that fact;
5
(ii) in the case of an advantage--any official tolerance of
6
the advantage;
7
(iii) in the case of an advantage--the fact that the advantage
8
may be customary, or perceived to be customary, in the
9
situation.
10
Matters to which regard may be had
11
(3) In determining whether influence is improper for the purposes of
12
paragraph 70.2(1)(b), a trier of fact may have regard to the
13
following:
14
(a) the recipient or intended recipient of the benefit;
15
(b) the nature of the benefit;
16
(c) the manner of the provision of the benefit (or, if applicable,
17
the offered or promised manner of the provision of the
18
benefit);
19
(d) whether the value of the benefit is disproportionate to the
20
value of any consideration provided or purported to have
21
been provided for the benefit;
22
(e) if the benefit was provided, or the offer or promise to provide
23
the benefit was made, in the absence of any legal obligation
24
to do so--that fact;
25
(f) whether the benefit was provided, or the offer or promise to
26
provide the benefit was made, dishonestly;
27
(g) whether, and to what extent, the provision of the benefit, or
28
the offer or promise to provide the benefit, is recorded or
29
documented;
30
(h) if the provision of the benefit, or the offer or promise to
31
provide the benefit, is recorded or documented:
32
(i) the accuracy of the record or documentation; and
33
(ii) whether the record or documentation is consistent with
34
the ordinary practices of the person who made the
35
record or documentation;
36
Schedule 1
Amendments relating to foreign bribery
Part 1
Main amendments
8
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
No. , 2019
(i) whether there is evidence that due diligence was exercised by
1
the first-mentioned person in section 70.2 in relation to the
2
benefit, or the offer or promise to provide the benefit;
3
(j) whether any of the following conduct is contrary to a written
4
law in force in the place where that conduct occurs:
5
(i) the provision of the benefit, or the offer or promise to
6
provide the benefit;
7
(ii) the acceptance of the benefit;
8
(iii) any conduct directly connected with conduct referred to
9
in subparagraph (i) or (ii);
10
(k) if particular business or a particular business or personal
11
advantage is relevant to proving the matters referred to in that
12
paragraph--the following:
13
(i) whether the business or advantage was awarded on a
14
competitive or non-commercial basis;
15
(ii) whether there is any demonstrable conflict of interest in
16
the provision of the business or advantage.
17
(4) To avoid doubt, subsection (3) does not limit the matters to which
18
the trier of fact may have regard.
19
7 After subsection 70.3(2) of the
Criminal Code
20
Insert:
21
(2A) A person does not commit an offence against section 70.2 if:
22
(a) the person's conduct occurred in relation to a foreign public
23
official (the
relevant foreign public official
); and
24
(b) the relevant foreign public official is covered by
25
paragraph (m) of the definition of
foreign public official
in
26
section 70.1 because the relevant foreign public official is a
27
candidate to be a particular foreign public official (the
28
substantive foreign public official
); and
29
(c) assuming that the first-mentioned person's conduct had
30
occurred wholly in the place, the foreign country or the part
31
of the foreign country, as the case may be, (the
relevant
32
place
) referred to in the item of the table in subsection (1)
33
that would be applicable if the first-mentioned person's
34
conduct had occurred in relation to the substantive foreign
35
public official, a written law in force in the relevant place
36
Amendments relating to foreign bribery
Schedule 1
Main amendments
Part 1
No. , 2019
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
9
permits the provision of the benefit to the relevant foreign
1
public official.
2
Note:
A defendant bears an evidential burden in relation to the matter in
3
subsection (2A). See subsection 13.3(3).
4
8 After section 70.5 of the
Criminal Code
5
Insert:
6
Subdivision C--Failure to prevent bribery of foreign public
7
officials
8
70.5A Failing to prevent bribery of a foreign public official
9
Offence
10
(1) A person (the
first person
) commits an offence if:
11
(a) the first person is a body corporate:
12
(i) that is a constitutional corporation; or
13
(ii) that is incorporated in a Territory; or
14
(iii) that is taken to be registered in a Territory under
15
section 119A of the
Corporations Act 2001
; and
16
(b) an associate of the first person:
17
(i) commits an offence against section 70.2; or
18
(ii) engages in conduct outside Australia that, if engaged in
19
in Australia, would constitute an offence (the
notional
20
offence
) against section 70.2; and
21
(c) the associate does so for the profit or gain of the first person.
22
(2) Absolute liability applies to:
23
(a) paragraphs (1)(a) and (c); and
24
(b) the circumstance in subparagraph (1)(b)(i) that the associate
25
commits an offence against section 70.2; and
26
(c) the circumstance in subparagraph (1)(b)(ii) that the associate
27
engages in conduct outside Australia that, if engaged in in
28
Australia, would constitute the notional offence.
29
(3) To avoid doubt, the first person may be convicted of an offence
30
against subsection (1) because of the commission by the associate
31
Schedule 1
Amendments relating to foreign bribery
Part 1
Main amendments
10
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
No. , 2019
of an offence against section 70.2 even if the associate has not been
1
convicted of that offence.
2
(4) Section 12.6 applies in relation to an offence against subsection (1)
3
of this section as if the reference in section 12.6 to an employee,
4
agent or officer of a body corporate included any associate of the
5
body corporate.
6
Exception
7
(5) Subsection (1) does not apply if the first person proves that the first
8
person had in place adequate procedures designed to prevent:
9
(a) the commission of an offence against section 70.2 by any
10
associate of the first person; and
11
(b) any associate of the first person engaging in conduct outside
12
Australia that, if engaged in in Australia, would constitute an
13
offence against section 70.2.
14
Note:
A defendant bears a legal burden in relation to the matter in
15
subsection (5): see section 13.4.
16
Penalty
17
(6) An offence against subsection (1) is punishable on conviction by a
18
fine not more than the greatest of the following:
19
(a) 100,000 penalty units;
20
(b) if the court can determine the value of the benefit that the
21
associate obtained directly or indirectly and that is reasonably
22
attributable to the conduct constituting the offence, or that
23
would have constituted the notional offence, against
24
section 70.2--3 times the value of that benefit;
25
(c) if the court cannot determine the value of that benefit--10%
26
of the annual turnover of the first person during the period
27
(the
turnover period
) of 12 months ending at the end of the
28
month in which the associate committed, or began
29
committing, the offence or notional offence against
30
section 70.2.
31
Geographical jurisdiction
32
(7) Section 15.1 (extended geographical jurisdiction--category A)
33
applies to an offence against subsection (1).
34
Amendments relating to foreign bribery
Schedule 1
Main amendments
Part 1
No. , 2019
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
11
70.5B Guidance on preventing bribery of foreign public officials
1
(1) The Minister must publish guidance on the steps that a body
2
corporate can take to prevent an associate from bribing foreign
3
public officials.
4
(2) Guidance under subsection (1) is not a legislative instrument.
5
9 Before section 70.6 of the
Criminal Code
6
Insert:
7
Subdivision D--Miscellaneous
8
70.5C Meaning of annual turnover
9
(1) For the purposes of this Division, the
annual turnover
of a body
10
corporate, during the turnover period, is the sum of the values of all
11
the supplies that the body corporate, and any body corporate
12
related to the body corporate, have made, or are likely to make,
13
during that period, other than the following supplies:
14
(a) supplies made from any of those bodies corporate to any
15
other of those bodies corporate;
16
(b) supplies that are input taxed;
17
(c) supplies that are not for consideration (and are not taxable
18
supplies under section 72-5 of the
A New Tax System (Goods
19
and Services Tax) Act 1999
);
20
(d) supplies that are not made in connection with an enterprise
21
that the body corporate carries on.
22
(2) Expressions used in this section that are also used in the
A New Tax
23
System (Goods and Services Tax) Act 1999
have the same meaning
24
in this section as they have in that Act.
25
70.5D Related bodies corporate
26
The question whether 2 bodies corporate are related to each other
27
is to be determined for the purposes of this Division in the same
28
way as for the purposes of the
Corporations Act 2001
.
29
Schedule 1
Amendments relating to foreign bribery
Part 1
Main amendments
12
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
No. , 2019
10 Application of amendments
1
The amendments made by this Part apply in relation to conduct engaged
2
in on or after the commencement of this Part.
3
Amendments relating to foreign bribery
Schedule 1
Other amendments
Part 2
No. , 2019
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
13
Part 2--Other amendments
1
Director of Public Prosecutions Act 1983
2
11 Subsection 17B(1) (table item 5, column headed
3
"Provisions")
4
After "70.2,", insert "70.5A,".
5
Income Tax Assessment Act 1997
6
12 Subsection 26-52(2)
7
Repeal the subsection, substitute:
8
(2) An amount is a
bribe to a foreign public official
to the extent that:
9
(a) you incur the amount in, or in connection with:
10
(i) providing a benefit to another person; or
11
(ii) causing a benefit to be provided to another person; or
12
(iii) offering to provide, or promising to provide, a benefit to
13
another person; or
14
(iv) causing an offer of the provision of a benefit, or a
15
promise of the provision of a benefit, to be made to
16
another person; and
17
(b) you incur the amount with the intention of improperly
18
influencing a
*
foreign public official (who may be the other
19
person) in order to obtain or retain business or a business or
20
personal advantage (whether or not for yourself).
21
The benefit may be any advantage and is not limited to property.
22
13 Subsection 26-52(2A)
23
Omit "a business advantage", substitute "a business or personal
24
advantage".
25
14 Subsections 26-52(6) and (7)
26
Repeal the subsections, substitute:
27
Schedule 1
Amendments relating to foreign bribery
Part 2
Other amendments
14
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
No. , 2019
Improper influence
1
(6) In determining whether influence is improper, disregard the
2
following:
3
(a) the fact that the benefit, or the offer or promise to provide the
4
benefit, may be, or be perceived to be, customary, necessary
5
or required in the situation;
6
(b) any official tolerance of the benefit;
7
(c) if particular business or a particular business or personal
8
advantage is relevant to determining whether influence is
9
improper--the following:
10
(i) if the value of the business or advantage is
11
insignificant--that fact;
12
(ii) in the case of an advantage--any official tolerance of
13
the advantage;
14
(iii) in the case of an advantage--the fact that the advantage
15
may be customary, or perceived to be customary, in the
16
situation.
17
15 Application of amendments
18
The amendments of the
Income Tax Assessment Act 1997
made by this
19
Part apply to a loss or outgoing incurred on or after the commencement
20
of Part 1 of this Schedule.
21
Amendments relating to deferred prosecution agreements
Schedule 2
Main amendments
Part 1
No. , 2019
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
15
Schedule 2--Amendments relating to deferred
1
prosecution agreements
2
Part 1--Main amendments
3
Director of Public Prosecutions Act 1983
4
1 Before section 1
5
Insert:
6
Part 1--Preliminary
7
8
2 Subsection 3(1)
9
Insert:
10
approving officer
means a person appointed as an approving
11
officer under section 17G.
12
Commonwealth entity
has the same meaning as in the
Public
13
Governance, Performance and Accountability Act 2013
.
14
conduct
has the same meaning as in the
Criminal Code
.
15
deferred prosecution agreement
means an agreement mentioned in
16
subsection 17A(1).
17
DPA
(short for deferred prosecution agreement): see
deferred
18
prosecution agreement
.
19
secrecy provision
means a provision that:
20
(a) is a provision of a law of the Commonwealth (other than this
21
Act); and
22
(b) prohibits or regulates the use or disclosure of information.
23
3 Before section 5
24
Insert:
25
Schedule 2
Amendments relating to deferred prosecution agreements
Part 1
Main amendments
16
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
No. , 2019
Part 2--Office of the Director of Public
1
Prosecutions
2
3
4 After paragraph 6(1)(fa)
4
Insert:
5
(fb) to negotiate, enter into, and administer, on behalf of the
6
Commonwealth, deferred prosecution agreements; and
7
5 After subsection 9(6F)
8
Insert:
9
(6G) The Director may, on behalf of the Commonwealth, enter into a
10
DPA and do all things necessary or convenient to be done for or in
11
connection with negotiating, entering into, or administering, a
12
DPA.
13
6 After subsection 11(2)
14
Insert:
15
(2A) Without limiting the generality of subsection (1), directions or
16
guidelines under that subsection may be given or furnished in
17
relation to negotiating, entering into, or administering, deferred
18
prosecution agreements.
19
7 Before section 18
20
Insert:
21
Part 3--Deferred prosecution agreement scheme
22
23
17A Entering into a DPA
24
(1) The Director may, if the Director considers it appropriate to do so,
25
enter into an agreement, on behalf of the Commonwealth, with a
26
person (other than an individual) for an offence mentioned in
27
section 17B that is specified in the agreement.
28
Amendments relating to deferred prosecution agreements
Schedule 2
Main amendments
Part 1
No. , 2019
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
17
(2) Criminal proceedings must not be instituted in a federal court or in
1
a court of a State or Territory against the person in relation to an
2
offence specified in the agreement if the agreement is approved
3
under section 17D.
4
(3) Subsection (2) does not apply if:
5
(a) the Director is satisfied that there has been a material
6
contravention of the agreement by the person; or
7
(b) both of the following apply:
8
(i) the person provided inaccurate, misleading or
9
incomplete information to a Commonwealth entity in
10
connection with the agreement;
11
(ii) the person knew, or ought to have known that the
12
information was inaccurate, misleading or incomplete.
13
17B Offences to which a DPA may relate
14
(1) A DPA may be entered into in relation to an offence against a
15
provision listed in the following table.
16
17
Offences to which a DPA may relate
Item
Act
Provisions
1
Anti-Money Laundering and
Counter-Terrorism Financing Act
2006
Sections 35H, 35J and 35K, a
provision of Part 4 (other than
Division 4 of that Part), sections 74,
123, 136, 137, 138, 139, 140, 141,
142, 143 and 162
2
Autonomous Sanctions Act 2011
Sections 16 and 17
3
Charter of the United Nations Act
1945
Sections 20, 21, 27 and 28
4
Corporations Act 2001
Sections 1041A, 1041B, 1041C,
1041D, 1041E, 1041F, 1041G,
1043A and 1307
5
Criminal Code
Sections 70.2, 131.1, 134.1, 134.2,
135.1, 135.4, 141.1, 142.1, 144.1,
145.1, 145.2, 145.3, 145.4, 145.5,
400.3, 400.4, 400.5, 400.6 and
400.7, subsection 400.8(1) and
sections 400.9, 480.4, 480.5, 480.6,
Schedule 2
Amendments relating to deferred prosecution agreements
Part 1
Main amendments
18
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
No. , 2019
Offences to which a DPA may relate
Item
Act
Provisions
490.1 and 490.2
(2) A DPA may be entered into in relation to:
1
(a) an offence against section 11.1, 11.4 or 11.5 of the
Criminal
2
Code
that relates to an offence mentioned in subsection (1) of
3
this section; or
4
(b) an offence prescribed by the regulations for the purposes of
5
this paragraph.
6
(3) If a DPA is entered into in relation to an offence mentioned in
7
subsection (1) or (2) (the
primary offence
), the DPA may also be
8
entered into in relation to an offence (the
secondary offence
) to
9
which all of the following apply:
10
(a) the secondary offence is likely to arise out of the same course
11
of conduct that constitutes, or may constitute, the primary
12
offence;
13
(b) the secondary offence has a maximum penalty that is less
14
than the maximum penalty for the primary offence;
15
(c) the Director is satisfied that it is appropriate to enter into the
16
DPA in relation to the secondary offence.
17
17C Content of a DPA
18
(1) A DPA entered into with a person must contain the following:
19
(a) a statement of facts relating to each offence specified in the
20
DPA;
21
(b) the last day for which the DPA will be in force;
22
(c) the requirements to be fulfilled by the person under the DPA;
23
(d) the amount of financial penalty to be paid by the person to
24
the Commonwealth;
25
(e) the circumstances which constitute a material contravention
26
of the DPA, including (but not limited to) the following
27
circumstances:
28
(i) the contravention of a term of the DPA that is specified
29
in the DPA as a significant term;
30
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(ii) a pattern or sequence of contraventions of a term or
1
terms of the DPA that, considered collectively, are
2
significant;
3
(f) that the person consents, in circumstances mentioned in
4
subsection 17A(3), to the Director instituting a prosecution of
5
the person on indictment for an offence specified in the DPA
6
without the person having been examined or committed for
7
trial.
8
(2) A DPA entered into with a person may contain any of the
9
following terms:
10
(a) a term requiring the person to do any of the following:
11
(i) to compensate victims of an offence specified in the
12
DPA;
13
(ii) to donate money to a charity or other third party;
14
(iii) to consent to any relevant orders under the
Proceeds of
15
Crime Act 2002
being made in relation to an offence
16
specified in the DPA;
17
(iv) to implement a compliance program or policies;
18
(v) to cooperate in any investigation or prosecution relating
19
to a matter specified in the DPA;
20
(vi) to pay reasonable costs incurred by a Commonwealth
21
entity relating to negotiations for the DPA;
22
(b) a term setting out the consequences of a failure by the person
23
to comply with any of the terms of the DPA;
24
(c) any other term that the Director considers appropriate.
25
(3) A financial penalty for the purposes of paragraph (1)(d) must be of
26
a severity that the Director considers appropriate having regard to
27
all circumstances relating to the DPA, including:
28
(a) the person's cooperation in negotiations for the DPA; and
29
(b) the severity of the penalty that may be imposed by a court if
30
the person was convicted of each offence specified in the
31
DPA; and
32
(c) the inclusion in the DPA of terms of a kind mentioned in
33
subparagraph (2)(a)(i), (ii) or (iii).
34
(4) Despite paragraph (1)(d), a DPA need not include a financial
35
penalty if the Director is satisfied that there are exceptional
36
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circumstances and it is not in the interests of justice to include such
1
a penalty.
2
17D Approval of a DPA
3
(1) After the person and the Director agree to the terms of the DPA,
4
the Director must give the following to an approving officer:
5
(a) the DPA;
6
(b) a written statement that the Director is satisfied of the matters
7
mentioned in subsection (2).
8
(2) The Director must be satisfied of the following:
9
(a) there are reasonable grounds to believe that an offence
10
specified in the DPA has been committed;
11
(b) entering into the DPA is in the public interest.
12
(3) The approving officer must review the DPA and decide to either:
13
(a) approve the DPA; or
14
(b) not approve the DPA.
15
(4) The approving officer must approve the DPA if the approving
16
officer is satisfied that:
17
(a) the terms of the DPA are in the interests of justice; and
18
(b) the terms of the DPA are fair, reasonable and proportionate.
19
(5) For the purposes of subsections (3) and (4), an approving officer
20
must assume that the information set out in the DPA is true and
21
correct.
22
(6) The approving officer must give written notice of the decision to
23
the person and the Director.
24
(7) If the approving officer approves the DPA, the Director must,
25
within 10 business days after the day notice of the decision is
26
given, publish the DPA on the Office's website.
27
(8) Despite subsection (7), the Director may do either of the following
28
if the Director considers it appropriate to do so in the interests of
29
justice:
30
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(a) publish a version of the DPA that does not disclose the name
1
of the person or any other material the Director considers
2
should not be disclosed;
3
(b) not publish the DPA.
4
(9) Without limiting subsection (8), the Director may publish a version
5
of the DPA, or not publish the DPA, if the Director is satisfied that
6
publishing the full version of the DPA may:
7
(a) pose a threat to public safety; or
8
(b) prejudice an ongoing investigation; or
9
(c) prejudice the fair trial of a person; or
10
(d) be contrary to an order of a court.
11
(10) Subsection (8) does not prevent the Director publishing the DPA,
12
or a version of the DPA, at a later time if the Director considers
13
that it would be in the interests of justice to do so.
14
17E When a DPA is in force
15
(1) A DPA is in force for the period beginning the day after notice of
16
the approval of the DPA is given as mentioned in
17
subsection 17D(6) and ending on the earliest of the following:
18
(a) the day specified in the DPA for the purposes of
19
paragraph 17C(1)(b);
20
(b) if the Director is satisfied that there has been a material
21
contravention of the agreement--the day the person is given
22
notice of the initiation of criminal proceedings of a kind
23
mentioned in subsection 17A(2).
24
(2) However, if:
25
(a) a person is given notice as mentioned in paragraph (1)(b);
26
and
27
(b) a court makes a declaration (however described) that there
28
has not been a material contravention of the agreement;
29
the agreement is taken not to be in force for the period between the
30
day the person is given the notice and the day the court makes the
31
declaration.
32
(3) A variation to a DPA takes effect immediately after the day notice
33
of the approval of the variation is given under subsection 17F(2).
34
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(4) To avoid doubt, a DPA ceasing to be in force does not affect the
1
validity of anything done by the Director, or the person, in
2
accordance with the terms of the DPA.
3
17F Varying a DPA
4
(1) If the person and the Director agree to a variation to the DPA, the
5
Director must give the DPA as varied to an approving officer.
6
(2) The approving officer must review the DPA as varied and decide
7
to either:
8
(a) approve the variation; or
9
(b) not approve the variation.
10
(3) However, the approving officer must not approve the variation
11
unless the approving officer is satisfied that:
12
(a) the terms of the DPA as varied are in the interests of justice;
13
and
14
(b) the terms of the DPA as varied are fair, reasonable and
15
proportionate.
16
(4) For the purposes of subsections (2) and (3), an approving officer
17
must assume that the information set out in the DPA as varied is
18
true and correct.
19
(5) The approving officer must give written notice of the decision to
20
the person and the Director.
21
(6) If the approving officer approves the variation, the Director must,
22
within 10 business days after the day notice of the decision is
23
given, publish the DPA as varied on the Office's website.
24
(7) Despite subsection (6), the Director may do either of the following
25
if the Director considers it appropriate to do so in the interests of
26
justice:
27
(a) publish a version of the DPA as varied that does not disclose
28
the name of the person or any other material that the Director
29
considers should not be disclosed;
30
(b) not publish the DPA as varied.
31
(8) Without limiting subsection (7), the Director may publish a version
32
of the DPA as varied, or not publish the DPA as varied, if the
33
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Director is satisfied that publishing the full version of the DPA
1
may:
2
(a) pose a threat to public safety; or
3
(b) prejudice an ongoing investigation; or
4
(c) prejudice the fair trial of a person; or
5
(d) be contrary to an order of a court.
6
(9) Subsection (7) does not prevent the Director publishing the DPA,
7
as varied or a version of the DPA as varied, at a later time if the
8
Director considers that it would be in the interests of justice to do
9
so.
10
17G Appointment of approving officers
11
(1) The Minister may, in writing, appoint a person as an approving
12
officer for the purposes of this Part.
13
(2) The Minister must not appoint a person as an approving officer
14
unless the Minister is satisfied that:
15
(a) the person is a former judicial officer of a federal court or a
16
court of a State or Territory; and
17
(b) the person has the knowledge or experience necessary to
18
properly exercise the powers of an approving officer.
19
(3) An approving officer holds office for the period specified in the
20
instrument of appointment. The period must not exceed 5 years.
21
(4) An approving officer is to be paid the remuneration that is
22
determined by the Minister in writing.
23
(5) A determination made under subsection (4) is not a legislative
24
instrument.
25
17H Evidence
26
Admissibility
27
(1) In civil or criminal proceedings against a person (other than an
28
individual) who is, or was, a party to a DPA, or negotiations for a
29
DPA, none of the following are admissible in evidence against the
30
person:
31
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(a) documents (other than the DPA itself) that indicate the
1
person entered into negotiations for a DPA;
2
(b) documents (other than the DPA itself) that were created
3
solely for the purpose of negotiating a DPA.
4
(2) Without limiting subsection (1), the documents include the
5
following:
6
(a) any record indicating the person entered into negotiations for
7
the DPA;
8
(b) any record of negotiations for the DPA;
9
(c) any draft of the DPA (including any draft statement of facts).
10
(3) Subsection (1) does not apply in the following circumstances:
11
(a) the circumstances mentioned in subsection 17A(3);
12
(b) if the person has given evidence in another criminal
13
proceeding or a civil proceeding that is inconsistent with the
14
documents mentioned in subsection (1).
15
(4) To avoid doubt, this section does not affect the admissibility in
16
evidence of any information or document obtained as an indirect
17
consequence of a disclosure of, or any information contained in,
18
any document mentioned in subsection (1).
19
Agreed facts
20
(5) The statement of facts included in the DPA is taken to be agreed
21
facts for the purposes of section 191 of the
Evidence Act 1995
in
22
any of the following:
23
(a) criminal proceedings that are instituted in circumstances
24
mentioned in subsection 17A(3);
25
(b) proceedings under the
Proceeds of Crime Act 2002
that are
26
instituted after criminal proceedings mentioned in
27
paragraph (a).
28
17J Destroying evidence
29
(1) A person commits an offence if:
30
(a) a book, document or thing is relevant to:
31
(i) negotiating a DPA; or
32
(ii) assessing compliance with a DPA; and
33
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(b) the person causes the book, document or thing to be
1
prevented from being used in:
2
(i) negotiating the DPA; or
3
(ii) assessing compliance with the DPA; or
4
(iii) evidence in criminal proceedings of a kind mentioned in
5
subsection 17A(2) relating to the DPA.
6
Penalty:
7
(a) for an individual--imprisonment for 5 years or 300 penalty
8
units, or both; or
9
(b) for a body corporate--5,000 penalty units.
10
(2) The fault element for paragraph (1)(b) is intention.
11
17K Disclosure of information
12
(1) This section applies if:
13
(a) a person is, or was, an official (within the meaning of the
14
Public Governance, Performance and Accountability Act
15
2013
) of a Commonwealth entity; and
16
(b) the person obtains information of a kind mentioned in
17
subsection (2) (including by a disclosure, or a series of
18
disclosures, under this section).
19
(2) The information is information (including personal information
20
within the meaning of the
Privacy Act 1988
) obtained as a direct
21
result of the negotiating, entering into, or administering, of a DPA.
22
(3) The person may disclose the information (including the personal
23
information) to an authority described in an item of the following
24
table, or an official of such an authority, for a purpose described in
25
that item if:
26
(a) the person believes on reasonable grounds that the disclosure
27
will serve that purpose; and
28
(b) a court has not made an order prohibiting the disclosure of
29
the information to the authority for that purpose.
30
31
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Recipients and purposes of disclosure
Item
Authority to which disclosure may
be made
Purpose for which disclosure may
be made
1
Commonwealth entity
Assisting the entity to exercise its
powers, or perform its functions or
duties
2
Commonwealth entity or an
authority of a State or Territory, or
of a foreign country
Law enforcement purposes
3
Commonwealth entity or an
authority of a State or Territory, or
of a foreign country
The protection of public health, or
the life or safety of an individual or
group of individuals
4
A court or a tribunal, authority or
person that has the power to require
the answering of questions or the
production of documents
For the purposes of proceedings
before, or in accordance with an
order of, the court, tribunal,
authority or person
(4) This section applies despite any other secrecy provision, whether
1
enacted before, at or after the commencement of this section.
2
17L Disclosure and use of certain information
3
(1) If a provision of a Commonwealth law authorises the disclosure of
4
information to, or the use of information by, a person or authority
5
in relation to a prosecution for an offence, the provision is taken to
6
authorise the disclosure of the information to, or the use of the
7
information by, the person or authority for the purposes of
8
negotiating, entering into or administering a DPA in relation to that
9
offence.
10
(2) This section applies to a provision of a Commonwealth law
11
whether the provision was enacted before, at or after the
12
commencement of this section.
13
Part 4--Director, Associate Director and staff
14
15
8 Before section 31
16
Insert:
17
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Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
27
Part 5--Miscellaneous
1
2
9 Subsection 31(1)
3
After "9(6D)", insert ", Part 3".
4
10 After subsection 31(1A)
5
Insert:
6
(1AAA) The Director may, by writing signed by him or her, delegate to a
7
person who:
8
(a) is a member of the staff of the Office; and
9
(b) is an SES employee; and
10
(c) is a legal practitioner;
11
all or any of the Director's functions or powers under Part 3 (other
12
than those under subsections 17B(3), 17C(4), 17D(8) and 17F(7)).
13
11 Application provision
14
The amendments made by this Part apply in relation to conduct
15
occurring before, on or after the commencement of this Part.
16
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Part 2
Consequential amendments to the tax law
28
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
No. , 2019
Part 2--Consequential amendments to the tax law
1
A New Tax System (Goods and Services Tax) Act 1999
2
12 After paragraph 69-5(3)(a)
3
Insert:
4
(aa) section 26-7 of the
*
ITAA 1997 (Deferred prosecution
5
agreements);
6
Income Tax Assessment Act 1997
7
13 Section 12-
5 (after table item headed "debt interests")
8
Insert:
9
10
deferred prosecution agreements
no deduction for loss or outgoing under a deferred
prosecution agreement ..................................................
26-7
11
14 After section 26-5
12
Insert:
13
26-7 Deferred prosecution agreement expenditure
14
You cannot deduct under this Act a loss or outgoing incurred under
15
a term of a deferred prosecution agreement that is in force under
16
Part 3 of the
Director of Public Prosecutions Act 1983
.
17
15 Application provision
18
(1)
The amendments made by this Part (other than item 12) apply in
19
relation to the income year in which Part 1 of this Schedule commences
20
and later income years.
21
(2)
The amendment made by item 12 of this Part applies in relation to the
22
tax period in which Part 1 of this Schedule commences and later tax
23
periods.
24
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Other consequential amendments
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Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
29
Part 3--Other consequential amendments
1
Administrative Decisions (Judicial Review) Act 1977
2
16 After paragraph (xa) of Schedule 1
3
Insert:
4
(xaa) decisions under Part 3 of the
Director of Public Prosecutions
5
Act 1983
;
6
Crimes Act 1914
7
17 After paragraph 16A(2)(fa)
8
Insert:
9
(fb) whether the person entered into a DPA (within the meaning
10
of the
Director of Public Prosecutions Act 1983
) in relation
11
to the offence and the extent to which the person has
12
complied, or failed to comply, with the terms of the DPA;
13
18 Application provision
14
The amendments made by this Part apply in relation to conduct
15
occurring before, on or after the commencement of this Part.
16
Schedule 3
Amendments relating to dishonesty definitions in the Criminal Code
30
Crimes Legislation Amendment (Combatting Corporate Crime) Bill
2019
No. , 2019
Schedule 3--Amendments relating to
1
dishonesty definitions in the Criminal
2
Code
3
4
Criminal Code Act 1995
5
1 Subsections 73.9(3) and 92A.1(2) of the
Criminal Code
6
Repeal the subsections.
7
2 Sections 130.3 and 470.2 of the
Criminal Code
8
Repeal the sections.
9
3 Section 474.1 of the
Criminal Code
10
Repeal the section, substitute:
11
474.1 Determination of dishonesty to be a matter for the trier of fact
12
In a prosecution for an offence against this Subdivision, the
13
determination of dishonesty is a matter for the trier of fact.
14
4 Subsection 480.1(1) of the
Criminal Code
(definition of
15
dishonest
)
16
Repeal the definition.
17
5 Section 480.2 of the
Criminal Code
18
Repeal the section, substitute:
19
480.2 Determination of dishonesty to be a matter for the trier of fact
20
In a prosecution for an offence against this Part, the determination
21
of dishonesty is a matter for the trier of fact.
22
6 Dictionary in the
Criminal Code
23
Insert:
24
dishonest
means dishonest according to the standards of ordinary
25
people.
26
Amendments relating to dishonesty definitions in the Criminal Code
Schedule 3
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2019
31
Note:
The following provisions affect the meaning of
dishonest
in certain
1
cases:
2
(a) section 131.2 (theft);
3
(b) subsection 134.1(5) (obtaining property by deception);
4
(c) subsection 471.1(2) (theft of mail-receptacles, articles or postal
5
messages);
6
(d) subsection 474.47(8) (using a carriage service for inciting
7
property damage, or theft, on agricultural land).
8
7 Application provision
9
The amendments made by this Schedule apply in relation to the
10
commission of an offence for which dishonesty is an element, if the
11
conduct constituting the commission of the offence occurs wholly on or
12
after the commencement of this item.
13