Territory Stories

Debates Day 6 - Thursday 19 October 2017



Debates Day 6 - Thursday 19 October 2017

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Parliamentary Record 8


Debates for 13th Assembly 2016 - 2018; ParliamentNT; Parliamentary Record; 13th Assembly 2016 - 2020




Made available by the Legislative Assembly of the Northern Territory





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Legislative Assembly of the Northern Territory

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Attribution International 4.0 (CC BY 4.0)

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Legislative Assembly of the Northern Territory



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DEBATES Thursday 19 October 2017 2684 The new offence under section 78 will provide an alternative verdict to a charge under section 77. An illustration of the need for this new offence is shown through an investigation of the New South Wales ICAC. In Operation Atlas the NSW ICAC looked at the conduct of a town planner who accepted regular gifts and holidays, and engaged in sexual relationships with building developers who needed planning approvals. The evidence was disclosed that the town planners actions were partly taking advantage of a position and partly creating relationships with future potential clients in a future business as a consultant. While it might be possible in such a scenario to connect a particular benefit to an inducement to perform the planners functions in a particular way, some benefits might only be proven to tend to be corrupting. The government is of the view that public officers should not accept gifts that clearly have inappropriate strings attached, given their role as a public officer. Accepting such gifts undermines the public officers ability to be impartial and creates a perception in the community that public officers expect and accept bribes. Section 78 makes it clear that where gifts are offered or accepted tha t would tend to be corrupting given the public officers role, it is an offence. The maximum penalty for the offence of corruption at section 77 has been raised from seven years to 10 years to reflect the seriousness of this kind of offending. Over the last few years a number of Australian jurisdictions have raised the penalty for this offence to 10 years. The new offence at section 78 will carry a maximum penalty of five years imprisonment. Sections 77 and 78 involve giving or receiving benefit. This bill provides a broad definition of the term benefit. A benefit means a benefit of any kind, including a nonmonetary benefit. Nonmonetary benefits can include, for example, inappropriate relationships, sexual relationships or being given priority in a selection process. The definition of a benefit also includes a benefit obtained for another person. The public officer must knowingly obtain or intentionally request the benefit, but it is not necessary that the benefit pass directly to the public officer. The public officer, for example, could arrange for that benefit to pass to a spouse or friend in an attempt to hide the corrupt conduct. That spouse or friend may not have knowledge of the dubious circumstances in which the gift was obtained. These offences do not criminalise their actions unless it can be shown that they were knowingly aiding and abetting the offence. However, the public officer can still be charged with these offences if the public officer arranges for the improper benefit to go to an innocent third party. The term benefit is distinguished from two other terms used in the bill: gain and private interest. These definitions have been reviewed and amended. A gain was previously defined to mean a gain of property, including a temporary gain or a gain by keeping what one has. This bill modifies the definition to include a gain in the form of services. This makes it clear that obtaining anything of financia l worth is a gain, irrespective of whether it is a gain that can be simply enjoyed rather than being bought or sold. A private interest is defined to mean a legal or financial interest that is held directly or indirectly. The definition of a private interest in the Criminal Code currently excludes interest in companies with more than 25 persons. This exception pre-dates modern corporation laws and has no meaningful distinction in 2017. Further, it creates the perverse result that public officers in a small business are required to disclose their financial interest, but a public officer who owns millions of dollars worth of shares in a larger company is allowed to keep that secret. The bill removes this exception. It is the view of the government that if a public officer knowingly holds an interest in a company and is able to use their position to significantly affect that interest, then the public officer has a conflict of interest and it should be disclosed. The offences at sections 79 and 80, relating to failure to disclose private interests, have been rolled into a single provision. The offence at section 79(1) will require public servants to disclose any financial or legal interest they know about if they are able to significantly affect that interest. This retains the existing obligation on persons who are public sector employees proactively making their agency aware of their conflicts of interest so appropriate action can be taken. Section 79(4) creates a variation of this failure to disclose offence which applies to all public officers who keep their financial or legal interests secret and then use their position as a public officer to affect that interest or obtain a benefit. The maximum penalty for failing to disclose an interest and then obtain ing a benefit in relation to that interest has been raised to seven years to reflect the seriousness of the offending. Given that a high penalty is available for this more serious offending, the maximum penalty for merely failing to proactively disclose without obtaining a benefit has been lowered to two years.

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