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 17 criminal sanction and thereby introduces explicitly subjective elements into a criminal offence. 3.14 The Department explained that the purpose of the proposed s 75C is to safeguard against the rigid application of the offence provisions to lower-level conduct that is more appropriately dealt with by way of training or disciplinary action.19 The Committee notes that an alternative method of safeguarding against the prosecution of lower-level conduct is to narrow the terms of the offence so such conduct is excluded. Sound application of prosecutorial discretion, including requiring particular authorisations for a prosecution to proceed, is another orthodox means of preventing trivial cases coming before courts. 3.15 The Department further noted concerns that not having the proposed s 75C may have a chilling effect on reporting offences as a person who has knowledge of serious offences may be unwilling to report for risk of being prosecuted for the kind of low-level behaviours that section 75C is intended to exclude.20 3.16 The Department also stated 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 objective criteria without creating loopholes that could be exploited to avoid criminal sanction for more serious conduct.21 The Committee considers that if it is not possible to draft effective exclusion of lower-level conduct from these broad offences, then a more appropriate method of addressing this problem is to narrow the provisions of s 75C as suggested by the Department. 3.17 To avoid any potential chilling effect on reporting offences, the Committee considers that s 75C should be redrafted to clarify that trivial conduct or instances where the damage to the public interest is minimal does not warrant criminal sanction. Recommendation 2 The Committee recommends that section 75C 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. Advancing Secret Personal Interests 3.18 Section 79 updates the two offences relating to failing to disclose private interests currently dealt with at ss79 and 80 of the Criminal Code.22 The new s 79 contains two broad offences regarding failure to disclose conflicts of interest. Section 79(1) retains the existing offences as they apply to persons employed in the public service and requires that public sector employees: 19 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 20 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.5 21 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 22 Explanatory Statement, Independent Commissioner Against Corruption (Consequential and Related Amendments) Bill 2017 (Serial No. 35), https://parliament.nt.gov.au/committees/spsc/CRA, p.8 https://parliament.nt.gov.au/committees/spsc/CRA
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