Matt Keogh (Burt, Australian Labor Party) Share this | Hansard source

I rise today to speak on the Fair Work Amendment (Corrupting Benefits) Bill 2017, which is an interesting piece of legislation. The intent of this legislation is to make it an offence to engage in corrupting- or bribery-type behaviour between employers and those within the union movement and employees. This bill is effectively based on about three of 79 recommendations from the Heydon royal commission. If this is the strike rate that we are going to see from the government on implementing recommendations from a royal commission such as this then it really further highlights the base political motives that sat behind the holding of the royal commission in the first place, not to mention that it has taken the government over 12 months to bring forward this piece of legislation to implement these recommendations.

I would like to say that this piece of legislation has really engaged my mind as a new member of parliament, because prior to entering this place I worked in the legal profession as a specialist in the area of anti-bribery and anticorruption. It is something that I know a little about, having gone out to many employer organisations and corporates around Australia to train them, to develop policies with them and to engage with them to prevent bribery and corruption both within Australia and internationally. So I am quite passionate about making sure that we stamp out bribery and corruption in this nation and bribery and corruption that may occur between people in this nation and those from overseas, whether it be private or with foreign officials.

Something that we should not forget in debating this legislation is that we need to do more on the enforcement side when it comes to bribery and corruption as a general concept in this country. Over a number of years now, under the watch of this government, Australia has slid down the rankings when it comes to looking at those countries which are the least corrupt across the globe. Australia's rankings have fallen. We are apparently getting worse at dealing with corruption instead of getting better, and no amount of legislation is necessarily going to fix that. We need to have law enforcement engaged, trained and given the specialist resources, or given the resources at all—and here I refer just by way of an aside to the cuts to the AFP that we have seen in this budget. They are losing around 150 personnel. When it comes to the prioritisation of the work of our federal law enforcement officials, we need to make sure that we have personnel with the specialist expertise to engage in stamping out corruption of all forms in the Commonwealth and also to deal with those from Australia who are involved in foreign corruption. If that is occurring, we should make that stop. But this is still important legislation because it is important that we make sure that we are very clear as a nation that we are against all forms of corruption wherever they may occur.

This legislation effectively criminalises certain behaviour—corrupt behaviour, as you may generally describe it—which is actually already a crime. Under the criminal codes and crimes acts of the various states of this great Commonwealth, you will find that it is an offence to commit fraud against your employer, and you will find that there is an offence generally described as a secret commission. If you look at the intent of the legislation—I will get to the drafting in a minute—there is nothing in the intent of what is proposed to be criminalised. In fact, if you look at the recommendation of Heydon, he says secret commissions should be outlawed at a Commonwealth level, but they are already illegal under state law, which brings me back to my previous point: if this was going on, it should have been picked up by police and other law enforcement agencies and run with. In any event, one could never be critical of making something that is already a crime a crime. There is no harm done, at any rate.

As I said, I would like to come to the drafting, because this is Commonwealth law; this is going to be a Commonwealth crime. Anyone who has taken the time to pick up the Commonwealth Criminal Code, as I have many a time in my life as a former federal prosecutor, will know that Commonwealth crime is the most complex criminal law in the nation. We have taken the approach of adopting the great work that was done several decades ago of trying to harmonise criminal law and setting out a model criminal law that could be used around the country. The Commonwealth Criminal Code is based on the Model Criminal Code, and it completely codifies the concept of crime. The thing about doing that is it makes the drafting very difficult. That is what we can see right here in this legislation. We can see some particularly complex drafting has occurred here. Unfortunately, the government may have stuffed it on the way through. What we have is that the terms of the new offences that are being created here differ from the model legislation that was recommended by Heydon, and they differ from existing bribery and corruption offences that are already found in the Commonwealth Criminal Code.

Part of this may be due to the rushed way in which the government have brought this forward. As I said, it seems to have taken them over 12 months to bring the legislation in, but the drafting instructions going to the department and the production of the bill coming into this chamber all happened within about a month. I can tell you that is probably a high-risk game when it comes to creating further criminal offences for the Commonwealth statute book. But the lack of consultation as a result means that even organisations such as the Ai Group said to the Senate committee that was reviewing this legislation that they were quite concerned that there were important changes being made to this bill and that they should be properly reviewed before the legislation proceeds. However, as you know, we have no difficulty with the intent of what the legislation is proposing. But it does tell you something when the Ai Group is criticising a Liberal government for legislation such as this.

When I turn to the complexity of the draft of this legislation, we have different tests for intention that arise in different parts of the offences that have been set up in this bill. We seem to be missing one of the crucial concepts—that of dishonesty—which seems to create some offences that are much broader than was actually intended to be provided for in legislation such as this. It is desperately important when we create criminal law in this parliament—more than any other law—that we avoid unintended consequences. We hold an honoured and humble position in this chamber, and it is especially so when we create criminal law. Not only do we potentially take away the ability for the citizens of this country to do something but we also impose a criminal penalty for doing it. It is not to say that we should not create the crimes or the criminal offences, but we need to be very careful when we do it. And here we seem to have created or are proposing to create some criminal offences that are not necessarily going to survive that law of unintended consequences. I think we have some very broad offences. I can understand why we have broad offences, but what they seem to be critically missing is properly dealing with the concept of dishonesty in what is being proposed to be a criminal offence. The conduct that is being criminalised is that which is being done in a way to rip off a union, to rip off an employee or to rip off an employer. There is some sort of corruption involved, as opposed to just criminalising certain acts, which may, in certain circumstances, be entirely legitimate.

The drafters have attempted to deal with that by setting out a litany of certain things that the legislation is not designed to prohibit. That is a good start, but it would have been a much cleaner approach if it had included concepts such as dishonesty, or a similar concept from the criminal law, to make sure that we did not have this potential for unintended consequences coming from the legislation. In fact, what would have been good is if they had looked at the offences for bribery and corruption that exist in the Commonwealth statute book and said, 'Look, these have been interpreted by our courts already and we know how these will be interpreted when they are put into Commonwealth law so why don't we take that framework and move it into this piece of legislation so that everyone who reads it has an understanding of how it will operate?' We have a body of laws that exists already, but within this one bill we have about three different types of offences that are being created.

As a former federal prosecutor, one of my favourite pieces of policy guidance that has been created by a government department is the 107-page and beautifully named: A Guide to Framing Commonwealth Offences, Infringement Notices and Enforcement Powers. This document makes great reading any night of the week—especially if you have trouble sleeping. But, if someone had bothered to read that document, they would have seen that we have other bribery and corruption offences that could have been used as the basis for the framework of the ones that are being considered in this piece legislation. While, of course, the intent of the legislation is admirable in that we do need to stamp out all forms of bribery and corruption in this nation, I think there are some things that could have been fixed up in this legislation. It could have been made cleaner and it could have been done better, if the drafters were given the time to do it. I do not criticise the drafters, because they were given a very short time to turn this around—probably with some dubious instructions at best—but there was no opportunity to consult when this legislation was brought in so quickly, and yet it has such breadth, which is also of serious concern.

The other thing I would point out, as I mentioned at the beginning, is that the intended conduct to be criminalised here is already an offence under state law. It makes sense in one regard, given that the Commonwealth has effectively taken over all legislative responsibility for the relationship between employees, employers and their representatives, that the offences that relate to that conduct would also exist in the Commonwealth statute book. The question that then arises is: why only focus on the narrow focus of this conduct and not look at corrupt behaviour between corporations generally, which is also a specified Commonwealth power? Those areas of corruption have not been brought onto the Commonwealth statute book. Quite frankly, our stature internationally, in terms of dealing with bribery and corruption, would benefit greatly and would be improved if they were to also come under the auspices of review of the AFP, ASIC, APRA and the other law enforcement bodies, such as AUSTRAC, in the Commonwealth that should have the specialist expertise to deal with this.

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