Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019 - Commentary on Ministerial Responses [2020] AUSStaCSBSD 41 (26 February 2020)

• Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019

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Crimes Legislation Amendment (Combatting Corporate Crime) Bill 2019

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; • implement a Commonwealth Deferred Prosecution Agreement scheme; and • insert a new definition of 'dishonest' into the Criminal Code
Portfolio	Attorney-General
Introduced	Senate on 2 December 2019
Bill status	Before the Senate

Broad scope of offence provisions

2.31 In Scrutiny Digest 1 of 2020 the committee requested the Attorney-General's advice as to why it is necessary and appropriate to amend the definition of dishonesty in the Criminal Code. The committee noted that it would also be assisted by the provision of information relating to the range of offences that would be affected, and how the changes may impact on defendants' personal rights and liberties.^[4]

Attorney-General's response^[5]

2.32 The Attorney-General advised:

The Bill amends the definition of dishonesty in the Criminal Code to align with the approach taken by High Court jurisprudence, provide consistency with 2019 amendments to dishonesty offences in the Corporations Act 2001 (Corporations Act) and respond to operational agencies’ concerns about the practical difficulties with the current test.
The current definition of dishonesty in the Criminal Code requires a defendant to have been dishonest according to the standards of ordinary people, and to have known that their conduct was dishonest according to the standards of ordinary people (see, for example, the definition in section 130.3 of the Criminal Code). This approach is drawn from the approach in the English case of R v Ghosh (1982) EWCA Crim 2 (Ghosh).
In Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493 (Peters), the High Court endorsed a definition of dishonesty for the purposes of the common law that requires the defendant to have been dishonest according to the standards of ordinary, decent people, but does not require the defendant to have known that their conduct was dishonest according to the standards of ordinary people. The majority judgment observed that there is a degree of incongruity in requiring dishonesty to be determined by reference to whether the accused must have known that their conduct was dishonest according to the standards of ordinary, decent people. As part of the Peters decision, a majority of the High Court considered but did not follow the two-limb test in Ghosh. The Peters test was later affirmed by the High Court in Macleod v The Queen [2003] HCA 24; [2003] 214 CLR 230.
The Government considers the Peters test to be the preferred test for determining dishonesty under the Criminal Code and that it is no longer appropriate or desirable to apply the Ghosh test when determining whether conduct is dishonest under the Criminal Code. The question of whether a defendant subjectively knew their conduct was dishonest according to the standards of ordinary people is an irrelevant consideration in determining whether behaviour was dishonest or in establishing the relevant intention.
I am advised that law enforcement and prosecutorial experience has shown that it can be difficult to obtain sufficient admissible evidence to establish that the defendant was aware or knew that they were dishonest according to the standards of ordinary people. This means that even if a person was aware their conduct fell short of community standards, practical difficulties in finding and adducing evidence means a person may too readily escape liability.
While the new definition would define dishonesty by reference to a single objective standard, the application of the test by a court necessarily involves an assessment of the defendant’s subjective state of mind against this standard. In other words, a prosecution would still need to prove a ‘guilty mind’—that the defendant had the subjective knowledge, belief or intention that rendered the relevant conduct dishonest. A finder of fact, usually a jury, would then assess whether that knowledge, belief or intention was dishonest, against the standards of ordinary, decent people. It is also important to note the defence for mistake or ignorance of fact in section 9.1 of the Criminal Code will continue to apply to protect defendants who are under a mistaken belief about, or ignorant of, facts that would negate their culpability. For example, a person accused of dishonestly appropriating property from the Commonwealth under section 131.1 of the Criminal Code could avail themselves of this defence if they were under a genuine but mistaken belief that the property belonged to them.
The decision to revisit this issue has been taken in light of the 2019 amendments to the Corporations Act to apply the Peters test to all dishonesty offences under that Act. As the Criminal Code and the Corporations Act currently provide different definitions of dishonesty, I am concerned this has the potential to jeopardise prosecutions where offences under both the Corporations Act and the Criminal Code are brought together. There is a high risk of confusion where juries are required to apply two different tests of dishonesty, which can lead to severance of indictments or charges being dropped altogether. I consider this would be an unacceptable and unfortunate obstacle in holding white collar criminals to account. I am also advised that recent jurisprudence in the United Kingdom has seen a move away from the two-limb test in Ghosh.
I note the new definition to be inserted in the Criminal Code would apply not only to offences in the Criminal Code but also to Commonwealth offences that directly import the Criminal Code definition. There are currently 56 offences in the Criminal Code that rely on this definition of dishonesty (set out at Attachment A).^[6] These include the general dishonesty offences (sections 135.1 and 474.2), offences for the bribery of a Commonwealth public officials (section 141.1) and for dishonestly obtaining or dealing in personal financial information (section 480.4).
A transitional provision has also been included in the Bill to facilitate prosecution of cases involving ongoing criminal conduct that takes place before, or begins before and continues after, the commencement of the proposed amendments. This provision will ensure that defendants who are prosecuted for conduct pre-dating the commencement of Schedule 3 would be prosecuted by reference to the relevant test at the time of their offending.

Committee comment

2.33 The committee thanks the Attorney-General for this response. The committee notes the Attorney-General's advice that in Peters v The Queen [1998] HCA 7; (1998) 192 CLR 493, the High Court endorsed a definition of dishonesty for the purposes of the common law that requires the defendant to have been dishonest according to the standards of ordinary, decent people, but does not require the defendant to have known that their conduct was dishonest according to the standards of ordinary people.

2.34 The committee also notes the Attorney-General's advice that law enforcement and prosecutorial experience has shown that it can be difficult to obtain sufficient admissible evidence to establish that the defendant was aware or knew that they were dishonest according to the standards of ordinary people and that this means that even if a person was aware their conduct fell short of community standards, practical difficulties in finding and adducing evidence means a person may too readily escape liability. The committee further notes the Attorney-General's advice that while the new definition would define dishonesty by reference to a single objective standard, the application of the test by a court necessarily involves an assessment of the defendant’s subjective state of mind against this standard.

2.35 The committee also notes the Attorney-General's advice that there are currently 56 offences in the Criminal Code that rely on this definition of dishonesty, including the general dishonesty offences (sections 135.1 and 474.2), offences for the bribery of Commonwealth public officials (section 141.1) and for dishonestly obtaining or dealing in personal financial information (section 480.4).

2.36 The committee requests that the key information provided by the Attorney-General be included in the explanatory memorandum, noting the importance of this document as a point of access to understanding the law and, if needed, as extrinsic material to assist with interpretation (see section 15AB of the Acts Interpretation Act 1901).

2.37 In light of the detailed information provided, the committee makes no further comment on this matter.

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[4] Senate Scrutiny of Bills Committee, Scrutiny Digest 3 of 2020, pp. 15-16.

[5] The minister responded to the committee's comments in a letter dated 25 February 2020. A copy of the letter is available on the committee's website: see correspondence relating to Scrutiny Digest 3 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest

[6] A copy of the Attorney-General's letter (including Attachment A) is available on the committee's website: see correspondence relating to Scrutiny Digest 3 of 2020 available at: www.aph.gov.au/senate_scrutiny_digest