Crimes Legislation Amendment (Combatting Foreign Bribery) Bill 2023 [2023] AUSStaCSBSD 117 (2 August 2023)

• Crimes Legislation Amendment (Combatting Foreign Bribery) Bill 202310
• Reversal of the evidential burden of proof11
• Reversal of legal burden of proof Absolute liability offences15

---

Crimes Legislation Amendment (Combatting Foreign Bribery) Bill 2023^[10]

Purpose	Seeks to amend the Criminal Code Act 1995 to: extend the foreign bribery offence to include the bribery of candidates for public office and bribery conducted to obtain a personal advantage; remove the requirement that a benefit or business advantage be ‘not legitimately due’ and replace it with the concept of ‘improperly influencing’ a foreign public official; remove the requirement that the foreign public official be influenced in the exercise of their official duties; clarify that the foreign bribery offence does not require the prosecution to prove that the accused had a specific business, or business or personal advantage, in mind, and that the business, or business or personal advantage, can be obtained for someone else; and create an offence of failure of a body corporate to prevent foreign bribery by an associate; and Income Tax Assessment Act 1997 to preserve the existing rule which prohibits a person from claiming as a deduction for a loss or outgoing a bribe to a foreign public official.
Portfolio	Attorney-General
Introduced	House of Representatives on 22 June 2023

Reversal of the evidential burden of proof^[11]

1.9 Item 6 of Schedule 1 to the bill seeks to substitute section 70.2 of the Criminal Code 1995 (the Code). Substituted section 70.2 expands the remit of the offence of bribing a foreign public official. It is an offence under substituted section 70.2 for a person to do any of the following with the intention of improperly influencing a foreign public official in order to obtain or retain business or a business or personal advantage:

• provide a benefit to another person;

• cause a benefit to be provided to another person;

• offer to provide, or promises to provide, a benefit to another person; or

• cause an offer of the provision of a benefit, or a promise of a benefit, to be made to another person.

1.10 The offence carries a maximum penalty of either 10 years imprisonment, or a fine of 10,000 penalty units, or both for an individual.^[12]

1.11 Item 7 of Schedule 1 to the bill seeks to introduce proposed subsection 70.3(2A) which creates a defence to the offence under substituted section 70.2. The defence provides that the offence is not committed if:

• the person's conduct occurred in relation to a foreign public official; and

• the relevant foreign public official meets the definition of foreign public official under the Code; and

• a written law is in force in the place where the conducted occurred permits the provision of the benefit to the relevant foreign public official.

1.12 A defendant bears the evidential burden of proof in relation to this defence.

1.13 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.

1.14 The committee expects any such reversal of the evidential burden of proof to be justified and for the explanatory memorandum to address whether the approach taken is consistent with the Guide to Framing Commonwealth Offences, which states that a matter should only be included in an offence-specific defence (as opposed to being specified as an element of the offence) where:

• it is peculiarly within the knowledge of the defendant; and

• it would be significantly more difficult and costly for the prosecution to disprove than for the defendant to establish the matter.^[13]

1.15 The explanatory memorandum explains:

This offence-specific defence is appropriate because:
• The defendant would be in a better position to adduce evidence of the written foreign law he or she relied on when offering or providing the benefit. The defendant could readily provide evidence of the existence of the foreign law and their reliance on it to support their case.
• It would be difficult for the prosecution to prove the non-existence of a law in a foreign jurisdiction. For example, this would require the prosecution to seek evidence of any written law.
• The question of whether the benefit was required or permitted under a foreign country’s written law is not central to the question of culpability for the offence. The essential elements of the proposed foreign bribery offence are that the defendant provided, offered or caused to be provided or offered, a benefit to another person with the intention of improperly influencing a foreign public official in order to obtain or retain business or a business or personal advantage.^[14]

1.16 The committee considers that although the defendant may be able to adduce evidence of the existence of the foreign law, simple convenience is not enough to address the requirements of the Guide to Framing Commonwealth Offences. In this instance, is it not apparent that the relevant matters would be peculiarly in the defendant's knowledge or that it would be significantly more difficult or costly for prosecution to disprove the existence of a written law permitting the provision of the benefit. The committee considers that it is possible for the prosecution to seek advice as needed regarding legal provisions in a foreign country and that the existence of a written law in itself reflects that it cannot be peculiar to the defendant's knowledge.

1.17 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of reversing the evidential burden of proof under proposed subsection 70.3(2A).

Reversal of legal burden of proof
Absolute liability offences^[15]

1.18 Item 8 of Schedule 1 of the bill introduces proposed subsection 70.5A(1), which creates an offence if a person who is an associate of a body corporate that is a constitutional corporation commits an offence against section 70.2 or engages in conduct outside Australia, that, if engaged in Australia would constitute an offence against section 70.2. The conduct must be committed by the associate for the profit or gain of the body corporate.

1.19 Proposed subsection 70.5A(2) applies absolute liability to the following elements of the offence:

• the body corporate is a constitutional corporation and that it is taken to be registered in a Territory under section 119A of the Corporations Act 2001; and

• the associate of the body corporate commits an offence against section 70.2 of the Code; and

• the associate of the body corporate engages in conduct outside Australia that, if engaged in Australia, would constitute an offence against section 70.2.^[16]

1.20 Proposed subsection 70.5A(1) introduces an exception to the offence which requires the defendant to bear the legal burden of proof as to whether the body corporate had in place adequate procedures designed to prevent:

• the commission of an offence by any associate of the body corporate against section 70.2; and

• any associate of the body corporate engaging in conduct outside Australia, that, if engaged in Australia would constitute an offence against section 70.2.

1.21 Under general principles of the criminal law, for each physical element of an offence, a fault (mental) element must be proved before a person can be found guilty of the offence. This ensures that criminal liability is imposed only on persons who are sufficiently aware of what they are doing and the consequences it may have. When a bill provides that an offence is one of absolute liability, this removes the requirement for the prosecution to prove the defendant's fault. The application of absolute liability also prevents the defence of honest and reasonable mistake of fact from being raised, a defence that remains available where strict liability is applied.

1.22 As the application of absolute liability undermines fundamental criminal law principles, the committee expects the explanatory memorandum to provide a clear justification for any imposition of absolute liability, including outlining whether the approach is consistent with the Guide to Framing Commonwealth Offences.^[17]

1.23 The explanatory memorandum explains:

In this case, applying absolute liability to the above elements of the offence in subsection 70.5A(1) is necessary to ensure the effectiveness of the new offence. In particular, it ensures that the prosecution does not need to establish any fault element in order to prove the offence. Accordingly, a corporation will not be able to avoid criminal liability committed by its associate for the profit or gain of the corporation because one or more fault elements could not be attributed to it. In this way, the offence incentivises corporations to actively ensure they have adequate procedures in place to prevent foreign bribery occurring. The defence of ‘adequate procedures’ is discussed further below. Applying absolute liability in this way is appropriate to capture the distinct nature of corporate misconduct where it is a form of omission.
The application of absolute liability to paragraph 70.5A(1)(a) is necessary as this aspect of the offence is a jurisdictional element. It is not appropriate for the defence of mistake of fact to apply to the offence elements in paragraph 70.5A(1)(b). It is sufficient that the fault elements of the underlying conduct by the associate described in those subparagraphs need to be established by the prosecution.^[18]

1.24 At common law, it is also 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 one or more elements of an offence, interfere with this common law right.

1.25 As the reversal of the burden of proof undermines the right to be presumed innocent until proven guilty, the committee expects there to be a full justification each time the burden is reversed, with the rights of people affected being the paramount consideration.

1.26 In relation to the reversal of the legal burden of proof, the explanatory memorandum explains:

The defendant bears a legal burden in relation to this matter. The justification for imposing this legal burden on the body corporate is that it would create a strong positive incentive for corporations to adopt measures to prevent foreign bribery. The standard of proof the defendant would need to discharge in order to prove the defence is the balance of probabilities (section 13.5 of the Criminal Code).^[19]

1.27 It is not clear to the committee why it is appropriate to apply absolute liability to subparagraphs 70.5A(1)(b)(i) and 70.5A(1)(b)(ii). Although the committee notes that the offence is only applicable to a body corporate and that the offences are designed to incentivise corporations to ensure adequate procedures exist to prevent any associates of the body corporate from committing a foreign bribery offence, the committee does not consider that the explanatory memorandum sufficiently justifies the requirement to apply absolute liability to the offence elements and remove the requirement for prosecution to establish a fault element. It is also not apparent to the committee why it is appropriate in this instance to remove the defence of honest and reasonable mistake of fact from being applicable. The committee considers that the explanation provided does not sufficiently address the requirements outlined in the Guide to Framing Commonwealth Offences.

1.28 Further, the committee notes that the justification provided in relation to the reversal of the legal burden of proof in the explanatory memorandum is insufficient and does not address the requirements of the Guide to Framing Commonwealth Offences as well. Noting this, it is not clear to the committee why there is a reversal of legal burden of proof in this instance, rather than evidential, and how any reversal of burden of proof is appropriate.

1.29 Although the committee notes the defendant in this instance would be a body corporate, the committee is concerned at the application of absolute liability to various elements of the offence and at the reversal of the legal burden of proof without sufficient justification in the explanatory memorandum that accords with the Guide to Framing Commonwealth Offences.

1.30 The committee draws its scrutiny concerns to the attention of senators and leaves to the Senate as a whole the appropriateness of applying absolute liability to elements of the offence and reversing the legal burden of proof in proposed section 70.5A.

---

[10] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Crimes Legislation Amendment (Combatting Foreign Bribery) Bill 2023, Scrutiny Digest 8 of 2023; [2023] AUSStaCSBSD 117.

[11] Schedule 1, item 6, substituted section 70.2. The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

[12] Schedule 1, item 6, substituted subsection 70.2(3).

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

[14] Explanatory memorandum, p. 16.

[15] Schedule 1, item 8, proposed subsections 70.5A(1) and (2). The committee draws senators’ attention to this provision pursuant to Senate standing order 24(1)(a)(i).

[16] Schedule 1, item 8, proposed subsection 70.5A(2).

[17] Attorney-General's Department, A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers, September 2011, p. 23.

[18] Explanatory memorandum, p. 18.

[19] Explanatory memorandum, p. 19.