Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2017 [2018] AUSStaCSBSD 9 (7 February 2018)

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Purpose	This bill seeks to amend various Acts in relation to criminal law and law enforcement to: • amend the offence of bribery of a foreign public official; • introduce a new offence of failure of a body corporate to prevent foreign bribery by association; • make consequential amendments ensuring the continuation of the existing policy of prohibiting a person from claiming a deduction for a loss or outgoing the person incurs that is a bribe to foreign public official; and • implement a Commonwealth Deferred Prosecution Agreement scheme
Portfolio	Justice
Introduced	Senate on 6 December 2017

Reversal of evidential burden of proof^[23]

1.42 Item 7 of the bill seeks to insert a new subsection 70.3(2A) into the Criminal Code Act 1995 (Criminal Code). That new subsection would provide an additional offence-specific defence to the existing foreign bribery offence in section 70.2 of the Criminal Code (an offence which the bill also seeks to amend). In this regard, proposed subsection 70.3(2A) provides that a person does not commit an offence against section 70.2 if:

1.43 Subsection 13.3(3) of the Criminal Code Act 1995 provides that a defendant who wishes to rely on any exception, exemption, excuse, qualification or justification bears an evidential burden in relation to that matter.

1.44 At common law, it is ordinarily the duty of the prosecution to prove all elements of an offence. This is an important aspect of the right to be presumed innocent until proven guilty. Provisions that reverse the burden of proof and require a defendant to disprove, or raise evidence to disprove, one or more elements of an offence, interferes with this common law right.

1.45 While in this instance the defendant bears an evidential burden (requiring the defendant to raise evidence about the matter), rather than a legal burden (requiring the defendant to positively prove the matter), the committee expects any such reversal of the evidential burden of proof to be justified.

1.46 The committee also notes that the Guide to Framing Commonwealth Offences provides that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence), where:

1.47 In this case, it is not apparent that the matters in proposed subsection 70.3(2) are peculiarly within the defendant's knowledge, or that it would be significantly more difficult or costly for the prosecution to establish this matter. Further, although the explanatory memorandum addresses the effect of reversing the evidential burden of proof in this case, it does not address the question of why it is appropriate to frame the matter as an offence-specific defence rather than as an element of the offence.

1.48 As the explanatory materials do not address this issue, the committee requests the Attorney General's advice as to why it is proposed to use offence-specific defences (which reverse the evidential burden of proof) in this instance. The committee's consideration of the appropriateness of a provision which reverses the burden of proof is assisted if it explicitly addresses relevant principles as set out in the Guide to Framing Commonwealth Offences.^[25]

Significant matters in non-statutory guidelines^[26]

1.49 Proposed section 70.5B seeks to require the minister to publish guidance on the steps that a body corporate can take to prevent an associate from bribing a foreign public official. Proposed subsection 70.5B(2) provides that such guidance will not be a legislative instrument. The explanatory memorandum states that '[the publication of guidance] is intended to assist companies in implementing appropriate measures to prevent bribery from occurring within their organisations' but that such guidance 'would not be legislative in character'.^[27]

1.50 Proposed section 70.5B follows immediately on from proposed section 70.5A, which provides that a body corporate would commit an offence if an associate^[28] of that body corporate commits the offence of bribing a foreign public official,^[29] and the associate does so for the profit or gain of the body corporate.

1.51 Proposed subsection 70.5A(5) states that the offence in proposed section 70.5A would not apply if the body corporate had in place adequate procedures designed to prevent the commission of the offence of bribing a foreign public official by any associate, and to prevent any associate engaging in conduct outside Australia that would constitute the same offence if engaged in in Australia. The bill proposes to place a legal burden of proof on the defendant, ensuring that the defendant would need to prove, on the balance of probabilities, that it had in place adequate procedures to prevent an associate from bribing a foreign public official.

1.52 The explanatory memorandum states that what constitutes 'adequate procedures' would be determined by the courts on a case by case basis and that the concept would be 'scalable, depending on the relevant circumstances including the size and nature of the body corporate.'^[30] The explanatory memorandum also states, in the context of explaining what constitutes 'adequate procedures', that proposed section 70.5B provides that the minister must publish guidance on the steps that body corporates can take to prevent an associate from bribing foreign public officials.

1.53 It is not clear to the committee what role the guidance the minister must publish under proposed section 70.5B would have in relation to establishing the defence in proposed subsection 70.5A(5). The defence in that proposed subsection requires the courts to consider whether the body corporate had adequate procedures in place to prevent associates from bribing a public official. The guidance relates to steps that the body corporate can take to prevent an associate from bribing public officials. It is not clear whether a body corporate that complies with guidance published by the minister would be determined to have 'adequate procedures' in place and therefore able to establish the defence in subsection 70.5A(5), or if a body corporate could comply with such guidelines but still be found by the courts to not have had adequate procedures in place.

1.54 The committee is concerned that, because the exception to the offence does not clearly articulate what would constitute 'adequate procedures', it has been left to ministerial guidance to clarify the limits of criminal liability with respect to the offence. This concern is compounded by the fact that the guidance will not be a legislative instrument.

[23] Item 7. The committee draws senators' attention to this provision pursuant to principle Senate Standing Order 24(1)(a)(i).

[24] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 50.

[25] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, pp 50-52.

[26] Item 8, proposed subsections 70.5A(5) and 70.5B. The committee draws senators' attention to these provisions pursuant to principle Senate Standing Order 24(1)(a)(iv).

[28] This is defined in item 2 of the bill to mean an officer, employee, agent or contractor of the other person, a subsidiary of the other person; controlled by the other person; or otherwise performs services for or on behalf of the other person.

[29] Or engages in conduct outside Australia that, if engaged in in Australia, would constitute the same offence.

Australian Senate Standing Committee for the Scrutiny of Bills - Scrutiny Digests