David Smith (Bean, Australian Labor Party) Share this | Hansard source

Disgraceful indeed.

One of the companies related to suspicious contracts on Nauru was Canstruct International. A contract was awarded to this company to provide welfare and garrison services on Nauru, despite the company not having any experience of providing either of these services to vulnerable people. The contract between the department and Canstruct International was extended many times, without a competitive tender. This was a shelf company with no relevant experience, getting a $1.8 billion contract, without a competitive tender, from the former government. We also know that the Leader of the Opposition knows this company very well. Executives of Canstruct enjoyed exclusive access to the now Leader of the Opposition during this period. These sorts of arrangements are exactly what this government intends to target through amendments to this bill.

I will say that the corporates in this case, in respect of this bill, will be protected where they can show that they have followed adequate procedures that are in place to prevent foreign bribery by an associate. As I said before, we're going to have guidance material for the corporations. They can follow that guidance material and then make sure that they're above reproach. The UK has utilised a similar offence to prosecute companies in a few cases of foreign bribery. These are reforms that ensure that a company cannot simply ignore bribery conducted by its employees or contractors where it results in benefits for their business. They cannot pretend that it's business as usual.

Companies can currently avoid criminal liability under existing offences in the Criminal Code even if they know or strongly suspect foreign bribery is occurring. These companies have been able to remain wilfully blind to the activities of their associates, including through the use of third-party agents located offshore. These reforms will enable bribery by an associate of a corporation to trigger corporate liability.

The reforms will also create a new offence—that is certainly true—for corporations that fail to prevent foreign bribery. The maximum penalty will be $27.5 million or higher. Companies can also be held directly liable for the foreign bribery activities of their employees, external contractors, agents and subsidiaries, unless a business can demonstrate that they had adequate procedures in place. That is eminently fair. You are responsible, as an entity, for the operations that you are conducting as a corporate entity. These reforms are about ensuring accountability, something that was very far away from the minds of the opposition when they were in government, with respect to sitting on this bill and doing nothing for so many years.

We know that prosecuting for foreign bribery is currently so challenging. As I said earlier, that's why we are making the changes to the definitions in division 70 of the Commonwealth Criminal Code.

As part of this bill, the existing foreign bribery offence will be replaced to ensure that it better captures typical cases of foreign bribery identified by law enforcement. Prosecutors currently need to show that both the bribe and the business advantage it sought were 'not legitimately due', which is difficult in cases where bribes are disguised as legitimate payments. This bill replaces the need for this and instead requires prosecutors to demonstrate the improper influencing of a foreign public official. It also broadens the scope of the foreign bribery offence to include bribery conducted that involves a personal advantage, not just a business advantage. It modifies the definition of 'foreign public official' to include candidates for public office—quite rightly. The bill also introduces a new corporate offence of failure to prevent foreign bribery. This relates to cases where an associate of a body corporate has committed bribery for the benefit of the body corporate.

The Albanese government is taking action on foreign bribery by Australian companies after 10 years of nothing happening. This is about accountability and the value of accountability, which we hold high. This is about having no tolerance for corruption. That is why we are pushing ahead with this bill, despite the empty protestations of some of the speakers opposite and the do-nothing attitude that was emblematic of the opposition when they were in government. It's time for us to take action. It's time for us to pass this bill through the House.

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