Social Policy Scrutiny Committee Inquiry into the Independent Commissioner Against Corruption (Consequential and Related Amendments) Bill 2017 February 2018
Tabled paper 588
Tabled papers for 13th Assembly 2016 - 2020; Tabled papers; ParliamentNT
Tabled by Ngaree Ah Kit
Made available by the Legislative Assembly of the Northern Territory under Standing Order 240. Where copyright subsists with a third party it remains with the original owner and permission may be required to reuse the material.
Legislative Assembly of the Northern Territory
Examination of the Bill 15 First, subsection 75C(2) does not specify that these are the only matters that might be taken into account by the finder of fact. A prescription that a court must have regard to specified matters (without the additional word only) does not necessarily mean that it cannot have regard to other matters. That begs the question of whether other unspecified factors may be taken into account in determining whether the conduct warrants criminal sanction, which would add to the subjective quality of the provision. Second, what relative weight is to be given to the various listed matters? There is room for a great deal of subjectivity in determining what emphasis should be given to each of the listed matters and, in consequence, whether the conduct warrants criminal sanction. Third at subsection 2(d), what is meant by the seriousness and result of the conduct? Is the court to set its own criteria as to what is serious and as to what sorts of results of conduct warrant criminal sanction? Overall, it appears that there is great latitude for individual finders of fact to determine what conduct warrants criminal sanction and, as a result, what is and is not improper conduct. Not only is it questionable that such a role should be given to the courts, but it is also likely to lead to considerable diversity of opinion and uncertainty as to when an offence has been committed.11 3.8 With regards to s 238 of the Criminal Law Consolidation Act 1935 (SA), on which s 75C is modelled, Professor Aughterson notes that while that provision is framed somewhat differently, it is still problematic: Under s 238(1) the question is whether the public officer knowingly or recklessly acted contrary to specified standards, which it is presumed, can be established by reference to public service codes of conduct, rules, policies etc. Subsection 238(2) then imposes a qualification: the person will not be taken to have acted improperly unless the conduct was such that the imposition of a criminal sanction is warranted. In that sense, it is not a positive element of the offence, but more in the nature of an excuse. Nevertheless, it does create difficulties in the sense of importing a significant degree of subjectivity and it seems that it has not yet been the subject of judicial comment in South Australia. However, the South Australian provision does not have the 3 difficulties referred to above in relation to the NT Bill. While subsection 238(3) does give 3 alternative mitigating factors, they are expressed in the alternative and also deal with questions such as honest and reasonable belief, lawful authority, reasonable excuse and triviality, which factors are commonly considered by the courts.12 3.9 The Department advised it was of the view that the provisions in the Bill were not only substantially very similar to the South Australian legislation but that the definition of what warrants criminal sanction is more defined and hence less subjective in the Northern Territory Bill.13 3.10 As noted previously, the purpose of s 75C is to provide a safeguard against criminalising lower-level conduct that would be more appropriately dealt with by way of training or disciplinary action. While acknowledging that in doing-so it does introduce an element of subjectivity, the Department advised the Committee that: Given the broad nature of these offences, and the broad range of circumstances in which they might apply, it is very difficult to exclude lower-level conduct with 11 Professor Ned Aughterson, Review of the ICAC (Consequential and Related Amendments) Bill 2017, (unpublished), 8 November 2017, pp.2-3 12 Professor Ned Aughterson, Review of the ICAC (Consequential and Related Amendments) Bill 2017, (unpublished), 8 November 2017, p. 3 13 Department of the Attorney-General and Justice, Response to Professor Aughtersons advice regarding ss 75C and 79 of the Criminal Code, (unpublished) 17 November 2017, p.3
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