NT politicians make extra sure they will be exempt from 'unsatisfactory conduct' review

By Harley Dennett

November 17, 2017

When it comes to less serious corruption, Northern Territory’s Independent Commissioner Against Corruption will only have powers to investigate public servants — not judges or politicians.

A trend in recent corruption agency reforms has been to separate less serious corruption, sometimes called misconduct or unsatisfactory conduct, from major corruption. But this catch-all for smaller offences appears to have spooked politicians.

NT politicians have moved to exempt themselves from the ‘unsatisfactory conduct’ clause in their corruption watchdog’s new draft legislation. The NT News ran the revelation as a big splash on its front page today, speculating about the timing of the report’s drop, immediately in the wake of the same-sex marriage survey results.

An existing provision that shields the conduct of judicial officers while in performing judicial functions should be expanded to include sitting members of the legislative assembly, recommended the report published this week by the territory’s Labor-dominated Social Policy Scrutiny Committee.

The report states:

“As currently drafted, the Committee is concerned that the boundaries in relation to parliamentary privilege and the Assembly’s right to control its own affairs are not clearly defined and gives rise to the potential for a: ‘very substantial infringement on the autonomy and dignity of the House and its Members, who simply should not be told by an outside authority, constitutionally located in the executive administration (albeit independent), how to conduct their exercise of official function.'” [citing the submission of NSW-based former Law Council of Australia president Bret Walker]

The NT Department of the Attorney-General and Justice took the view politicians were already exempt:

“The Bill does not explicitly carve out a similar exemption for Members of the Assembly in relation to their conduct of the business of the Legislative Assembly, because it is well established that this is carved out by the parliamentary privilege conferred on the Legislative Assembly by sections 6 and 12 of the Northern Territory (Self-Government) Act 1978 (Cth) in the absence of any explicit statutory provision limiting parliamentary privilege.”

This did not comfort the committee though, explicitly stating they “cannot agree” with the department’s advice. The remaining clause “still provides the ICAC a substantive role in examining the conduct of Members in breach of parliamentary privilege and the separation of powers between the Legislature and the Executive.” It goes on to conclude:

“The Committee agrees that MLAs that have engaged or are engaged in corrupt conduct or misconduct should be subject to investigation by the ICAC. However, for the reasons outlined above, the Committee does not consider that less serious matters that fall within ‘unsatisfactory conduct’, should fall within the ICAC’s remit.”

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