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
2018-02-06
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.
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Tabled papers
Legislative Assembly of the Northern Territory
Darwin
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https://www.legislation.gov.au/Details/C2019C00042
https://hdl.handle.net/10070/290102
https://hdl.handle.net/10070/403129
Inquiry into the Independent Commissioner Against Corruption (Consequential and Related Amendments) Bill 2017 16 objective criteria without creating loopholes that could be exploited to avoid criminal sanction for more serious conduct.14 Inserting section 75C recognises that the offences to which it applies are intended to deter and punish public officers who wilfully betray the trust of the public through making decisions in their own personal interest, rather than the interest of the public. They are not intended to create a climate of fear that anyone who works in or with the public sector is only one poor judgement call away from committing an offence, no matter the circumstances.15 3.11 With regards to Professor Aughtersons query as to whether application of s 75C might create difficulties in a multi-cultural society, the Department advised that s 75C is intended to provide an opportunity to take into consideration factors such as the accuseds level of education, experience or cultural background. Section 75C is a safety valve that allows consideration of these kinds of differences prior to returning a verdict. While it is true that judges and juries may have differing views, the Government has taken the view that it is nevertheless best to allow them to make a decision as to whether the safety valve should be applied on a case by case basis, looking at all the available evidence, rather than prohibit this from occurring in any case.16 3.12 The Department further advised that should the Committee have concerns about s 75C, it would be better to narrow the provision rather than abandon it altogether since to do so would: merely leave unconscious bias, and differing value systems and structural barriers to function to filter out prosecutions at the stage of reporting and early investigation.17 As such, the Department suggested that s 75C could be amended to: clarify that the finder of fact must find that conduct warrants criminal sanction unless the conduct is trivial or the damage to the public interest is minimal. This would clearly delineate that section 75C only applies to lower-range behaviour.18 The Committee notes that this would more closely reflect s 238(3)(c) of the South Australian legislation whereby a person is not be taken to have acted improperly if the act was of a trivial character and caused no significant detriment to the public interest. Committees Comments 3.13 The Committee was concerned that the proposed s 75C inappropriately gives the court rather than the Parliament the role of determining the conduct that warrants 14 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.2 15 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.2 16 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.4 17 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.4 18 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, pp.2-3