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This is a Bill, not an Act. For current law, see the Acts databases.
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
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 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.
(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 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.
(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.