Corporate Code of Conduct Bill 2000 [2002]
First Reading
1998-1999-2000
The Parliament of the
Commonwealth of Australia
THE SENATE
Presented and read a first time
Corporate Code of Conduct Bill 2000
No. , 2000
(Senator Bourne)
A Bill for an Act to impose standards on the conduct of Australian corporations which undertake business activities in other countries, and for related purposes
Contents
Part 1--Preliminary 1
1 Short title 1
2 Commencement 2
3 Objects of Act 2
4 Extraterritorial operation 2
5 Application of Act to Commonwealth and Commonwealth authorities 2
6 Interpretation 3
Part 2--Corporate Codes of Conduct 6
7 Environmental standards 6
8 Health and safety standards 6
9 Employment standards 7
10 Human rights standards 7
11 Duty to observe tax laws 8
12 Duty to observe consumer health and safety standards 8
13 Consumer protection and trade practices standards 9
Part 3--Reporting 10
14 Reports to Australian Securities and Investments Commission 10
15 Reports to the Parliament 11
Part 4--Enforcement 13
16 Civil penalties 13
17 Civil actions 14
18 Regulations 15
A Bill for an Act to impose standards on the conduct of Australian corporations which undertake business activities in other countries, and for related purposes
The Parliament of Australia enacts:
This Act may be cited as the
Corporate Code of Conduct Act 2000.
This Act commences on the day on which it receives the Royal Assent.
(1) The objects of this Act are:
(a) to impose environmental, employment, health and safety and human rights standards on the conduct of Australian corporations or related corporations which employ more than 100 persons in a foreign country; and
(b) to require such corporations to report on their compliance with the standards imposed by this Act; and
(c) to provide for the enforcement of those standards.
(2) To avoid doubt, a body corporate to which this Act applies is not required to take any action to meet the requirements of this Act in respect of its operations in a foreign country that it would not be required to take in respect of its operations in Australia.
This Act applies outside Australia but does not apply in relation to any corporation outside Australia unless that corporation employs or engages the services of 100 or more persons in a country other than Australia and is:
(a) a trading or financial corporation formed within the limits of the Commonwealth; or
(b) a holding company of such a corporation; or
(c) a subsidiary of such a corporation; or
(d) a subsidiary of a holding company of such a corporation.
(1) This Act binds the Crown in right of the Commonwealth in so far as the Crown in right of the Commonwealth carries on a business, either directly or by an authority of the Commonwealth.
(2) Subject to subsections (3) and (4), this Act applies as if:
(a) the Commonwealth, in so far as it carries on a business otherwise than by an authority of the Commonwealth; and
(b) each authority of the Commonwealth (whether or not acting as an agent of the Crown in right of the Commonwealth) in so far as it carries on a business;
were a body corporate.
(3) Nothing in this Act makes the Crown in right of the Commonwealth liable to be prosecuted for an offence.
(4) The protection in subsection (3) does not apply to an authority of the Commonwealth.
In this Act, unless the contrary intention appears:
anti-competitive agreement means an agreement which if enforced within Australia would be contrary to Part IVA of the Trade Practices Act 1974.
basic needs means nutritious food, clothing, health care, education, potable water, child care, transportation, housing and energy.
body corporate means:
(a) a trading or financial corporation formed within the limits of the Commonwealth; or
(b) a holding company of such a corporation; or
(c) a subsidiary of such a corporation; or
(d) a subsidiary of a holding company of such a corporation.
country includes:
(a) a colony, territory or protectorate of a country; and
(b) a territory for the international relations of which the country is responsible; and
(c) a ship or aircraft of, or registered in, the country.
ecosystem means a dynamic complex of plant, animal and micro-organism communities and their non-living environment interacting as a functional unit.
employees means persons engaged to perform work or service for an enterprise.
environment includes:
(a) ecosystems and their constituent parts, including people and communities; and
(b) natural and physical resources; and
(c) the qualities and characteristics of locations, places and areas; and
(d) the social, economic and cultural aspects of a thing mentioned in paragraph (a), (b) or (c).
executive officer of a body corporate means a person, whether or not a director of the body corporate, who is concerned in, or takes part in, the executive management of the body corporate.
forced or compulsory labour means all work or service which is exacted from any person under the threat of any penalty, and for which that person has not offered himself or herself voluntarily, but does not include any work or service:
(a) of a purely military character exacted by virtue of a law providing for compulsory military service; or
(b) which forms part of the normal civic obligations of the citizens of a self-governing country; or
(c) required to be performed as a consequence of a
Back to Top conviction in a court of law, provided that the work or service is to be performed only under the control of a public authority; or
(d) required in cases of emergency, famine, war or serious threat.
industrial undertaking means:
(a) mines, quarries and other works for the extraction of minerals, including oil and gas, from the earth or seabed; or
(b) industries in which articles are manufactured, altered, cleaned, repaired, finished, adapted for sale, broken up or demolished, or in which materials are transformed; or
(c) the generation or transmission of electricity; or
(d) the distribution of gas or water; or
(e) the construction, reconstruction, maintenance, repair, alteration or demolition of any building or structure; or
(f) the transport of passengers or goods by road, rail, air, sea or inland waterway, including the handling of goods at docks, quays, wharves and warehouses.
living wage means a wage sufficient to meet the basic needs of a family of two adults and three children in the country or region they are resident in.
minimum international labour standards means standards contained in the following International Labor Organization Conventions as agreed under Australian law:
(a) Freedom of Association and Protection of the Right to Organize Convention (No. 87);
(b) Right to Organize and Collective Bargaining Convention (No. 98);
(c) Forced Labour Convention (No. 29);
(d) Abolition of Forced Labour Convention (No. 105)
(e) Discrimination (Employment and Occupation) Convention (No. 111);
(f) Equal Remuneration Convention (No. 100);
(g) Minimum Age Convention (No. 138);
(h) Occupational Safety and Health (No. 155).
overseas corporation means a body corporate which employs or engages the services of 100 or more persons in a country other than Australia.
precautionary principle means that lack of full scientific certainty should not be used as a reason for postponing a measure to prevent degradation of the environment where there are threats of serious or irreversible environmental damage.
(1) An overseas corporation which undertakes any activity in a place must take all reasonable measures to prevent any material adverse effect on the environment in and around that place from that activity.
(2) Without limiting subsection (1), an overseas corporation must:
(a) at least once in every period of 12 months, collect and evaluate information regarding the environmental impacts of its activities; and
(b) establish objectives for the measurement of its environmental performance; and
(c) monitor and assess its compliance with those objectives; and
(d) provide timely information to its employees and to members of the public in any place in which it undertakes activities on the actual and potential environmental impacts of the activities of the corporation; and
(e) have appropriate policies on matters of environmental safety, including (where applicable) the handling of hazardous materials and the prevention and control of environmental accidents; and
(f) undertake environmental impact assessments of all new developments, including providing an opportunity for public comment on the assessment; and
(g) have regard to the precautionary principle in carrying out the actions mentioned in paragraphs (a) to (f).
(1) An overseas corporation must take all reasonable measures to promote the health and safety of its workers.
Back to Top (2) Without limiting subsection (1), an overseas corporation must:
(a) provide a safe and healthy workplace for its employees; and
(b) provide satisfactory sanitary conditions at a workplace; and
(c) not require its employees to work for more than 5 consecutive hours without a break of at least 20 minutes; and
(d) not require its employees to work for more than 12 hours each day; and
(e) not require its employees to work more than 48 hours each week without the agreement of the employees; and
(f) have appropriate policies for responding to an accident or medical emergency at a workplace; and
(g) provide adequate education and training to employees in health and safety matters, including the prevention of accidents.
(1) An overseas corporation must not use or obtain the benefit of any forced or compulsory labour.
(2) An overseas corporation must not use or obtain the benefit of the labour of any child under the age of fourteen years in any public or private industrial undertaking.
(3) An overseas corporation must:
(a) as a minimum, pay all its workers a living wage; and
(b) not dismiss a worker for reasons of illness or accident; and
(c) respect the freedom of its workers to associate; and
(d) respect the right of its workers to organise independently and bargain collectively; and
(e) enable any complaints about conditions of labour to be forwarded to independent authorities; and
(f) comply with minimum international labour standards.
(1) Subject to subsection (2), in any matter which relates to the employment or occupation of a person, an overseas corporation must not distinguish, exclude or prefer a person on the basis of race, colour, sex, sexuality, religion, political opinion, national extraction or social origin if this has the effect of nullifying or impairing equality of opportunity or treatment in that employment or occupation.
(2) Subsection (1) does not apply to any distinction, exclusion or preference:
(a) in respect of a particular job based on the inherent requirements of the job; or
(b) in connection with employment as a member of the staff of an institution that is conducted in accordance with the doctrines, tenets, beliefs or teachings of a particular religion or creed, where that distinction, exclusion or preference is made in good faith in order to avoid injury to the religious susceptibilities of adherents of that religion or creed; or
(c) in connection with established governmental policies which specifically promote greater equality of employment opportunity.
An overseas corporation must comply with the tax laws in each country in which it operates.
(1) An overseas corporation must ensure that any goods or services which it provides satisfy the required standards for consumer health and safety for those goods or services in Australia and in any country in which it undertakes activities.
(2) An overseas corporation must take all reasonable measures to prevent any serious threat to public health in any country in which it undertakes activities which might occur from the consumption or use of products made by that corporation.
(3) An overseas corporation must take all reasonable measures to remove any serious threat to public health in any country in which
Back to Top it undertakes activities which has occurred from the consumption or use of products made by that corporation.
(1) An overseas corporation must not, in any country in which it undertakes activities, engage in any conduct that is misleading or deceptive or which is likely to mislead or deceive.
(2) An overseas corporation must not, in any country in which it undertakes activities, enter into or carry out or give effect to any anti-competitive agreement with another person.
(1) Before 31 August each year, an overseas corporation (the
corporation) must lodge with the Australian Securities and Investments Commission a Code of Conduct Compliance Report in accordance with subsection (2).
(2) Subject to subsection (3), a Code of Conduct Compliance Report must include:
(a) the financial and operating results of the corporation for 12 months; and
(b) the members of the board of directors of the corporation and their remuneration; and
(c) the 5 most significant executive officers of the corporation in each country (other than Australia) in which the corporation undertakes activities, and their remuneration; and
(d) details of all shareholdings representing more than 5% of the issued capital of the corporation; and
(e) the number of employees employed by the corporation in each country (other than Australia) in which the corporation undertakes activities; and
(f) the total remuneration paid to the employees in each country (other than Australia) in which the corporation undertakes activities; and
(g) a statement of the environmental impact, prepared by an independent auditor, of the activities of the corporation in each country (other than Australia) in which the corporation undertakes activities; and
(h) a statement of any foreseeable risk factors that might arise as a result of the activities of the corporation in each country in which it operates (other than Australia); and
(i) a statement of any contraventions of standards or laws relating to the environment, employment, health and safety and human rights by the corporation in each country in which it operates (other than Australia); and
(j) a statement of the social, ethical and environmental policies of the corporation; and
(k) any other matter relevant to the environmental, employment, health and safety and human rights standards observed by the corporation.
(3) If a corporation is required to lodge reports with the Australian Securities and Investments Commission apart from under this section, the corporation is not required to include in a report under subsection (2) any information that it has provided to the Commission in another report.
(4) A corporation which, without reasonable excuse, fails to lodge a Code of Conduct Compliance Report is guilty of an offence punishable on conviction by a fine not exceeding 2000 penalty units.
(5) If a corporation contravenes subsection (4) and:
(a) an executive officer of the corporation knew that, or was reckless or negligent as to whether, the contravention would occur; and
(b) the officer was in a position to influence the conduct of the corporation in relation to the contravention; and
(c) the officer failed to take all reasonable steps to prevent the contravention;
the officer contravenes this subsection.
(6) An executive officer who is guilty of an offence under subsection (5) is liable, on conviction, to pay a fine not exceeding 1000 penalty units.
Back to Top (1) The Australian Securities and Investments Commission must prepare an annual report on compliance with the provisions of this Act.
(2) The Australian Securities and Investments Commission must forward a copy of the annual report prepared under subsection (1) to the Treasurer before 31 December in each year.
(3) The Treasurer must cause a copy of the annual report forwarded under subsection (2) to be laid before each House of the Parliament within 14 sitting days of that House after receiving the report.
(1) Conduct which contravenes a provision in Part 2 renders an overseas corporation liable to proceedings for the recovery of a civil penalty.
(2) If an overseas corporation contravenes a provision in Part 2 and:
(a) an executive officer of the corporation knew that, or was reckless or negligent as to whether, the contravention would occur; and
(b) the officer was in a position to influence the conduct of the corporation in relation to the contravention; and
(c) the officer failed to take all reasonable steps to prevent the contravention;
the executive officer also contravenes that provision.
(3) Within 6 years of a person or corporation (the wrongdoer) contravening a provision in Part 2, the Treasurer or the Attorney-General or the Chairperson of the Australian Securities and Investments Commission may apply on behalf of the Commonwealth to the Federal Court of Australia for an order that the wrongdoer pay the Commonwealth a pecuniary penalty not exceeding 10,000 penalty units.
(4) In determining the pecuniary penalty to be imposed, the Court must have regard to all relevant matters, including:
(a) the nature and extent of the contravention;
(b) the nature and extent of any loss suffered as a result of the contravention;
(c) the circumstances in which the contravention took place; and
(d) whether the wrongdoer has previously been found by the Court in proceedings under this Act to have engaged in any similar conduct.
(5) If conduct constitutes a contravention of 2 or more provisions in Part 2, proceedings may be instituted under this Act against a person or corporation in relation to the contravention of any one or more of those provisions. However, the person or corporation is not liable to more than one pecuniary penalty under this section in respect of the same conduct.
(1) Where an overseas corporation contravenes a provision of Part 2, any person who suffers loss or damage as a result may bring an action in the Federal Court of Australia.
(2) Where an overseas corporation contravenes a provision of Part 2, any person who is reasonably likely to suffer loss or damage as a result may bring an action in the Federal Court of Australia.
(3) If the Federal Court of Australia is satisfied that a person has suffered loss or damage as a result of a contravention of a provision of Part 2, the Court may:
(a) grant an injunction to prevent any further loss or damage; and
(b) make an order for compensation.
(4) If the Federal Court is satisfied that a person is reasonably likely to suffer loss or damage as a result of a contravention of a provision of Part 2, the Court may grant an injunction to prevent any further loss or damage.
(5) In this section, person means any person, whether resident in Australia or elsewhere, and includes any body corporate or association of persons.
(6) An action may be taken under subsection (1) or (2), on behalf of a person to whom either subsection applies, by a body corporate or association of persons whose principal objects include protection of the public interest.
(1) The Governor General may make regulations not inconsistent with this Act prescribing all matters necessary or convenient to be prescribed for carrying out or giving effect to this Act.