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Speech By Hon. C. Martin

Members Code of Conduct

Ms MARTIN (Chief Minister): Madam Speaker, I lay on the Table the draft Members’ Code of Conduct and Ethical Standards; and the draft Amendments to the Legislative Assembly (Register of Members’ Interests) Act. I am very pleased to be able to table these two draft documents. I intend to seek referral of them to the Standing Orders Committee for consideration and report back to the Assembly in the October sittings of parliament.

This draft Members’ Code of Conduct and Ethical Standards delivers on a key election promise of the government. Members on this side of the House have long supported a code of conduct for members and an improved register of members’ interests. Codes of conduct for elected and appointed public officials define acceptable and unacceptable conduct in office, and provide for disciplinary and other action cases of non-compliance. In general, the proposed code provides guidance to members of the Assembly on conflicts of interest arising from their function as an elected official, the obligation to recognise the need for accountable and responsible conduct in office by members, and the overall duty of a member to seek to advance the public interest.

It is proposed that this code will be created by the enactment of a new law, the Legislative Assembly (Members’ Code of Conduct and Ethical Standards) Act. The code is based generally on established Australian and Territory practice, and also draws on models of codification from New Zealand, Canada, the United States and the United Kingdom. While the code sets standards which are ultimately enforceable, it also sets aspirational standards for members’ conduct in office, which reflect current best practice internationally. The code does not provide sanctions for breaches of acquired standards. Instead, the act will provide, in line with current Assembly practice, that the Privileges Committee of the Assembly will be able to deal with failure to observe the principles set out in the act and the standards prescribed by the code.

Traditionally, codes of conduct provide accountability arrangements which emphasise dealing with wrongdoing after the event. This code will allow a proactive approach to ethics management designed to reduce the incidents of ethical breaches which have the potential to cause embarrassment to the member, the government or the Assembly, and which may require costly investigations. Examples are, poor management of conflict of interests, and improper involvement in tendering procedures for contracts generally. It also provides a clear basis for community expectations of members’ conduct in office, potentially reducing the scope for unwarranted or trivial complaints about the way in which members conduct themselves.

The new act will strengthen existing requirements for members of the Assembly to declare and register relevant pecuniary interests and those of their immediate family. In the interests of providing independent, expert and non-partisan investigation of allegations that a member has failed to declare a significant interest as required, the Office of the Auditor-General will be given the task of investigating the factual basis of any complaint and reporting findings of fact to the Assembly’s Privileges Committee.

Looking specifically at the Members’ Code of Conduct and Ethical Standards: the preamble outlines the fundamental objective of the act, which is to foster enhance public confidence in the integrity of the Legislative Assembly and its members. The act declares that minimal compliance with the letter of the law and the code will not be necessarily sufficient to meet the standard of conduct envisaged by the code.

Part 1 is General Principles. Clause 1 of the Legislative Assembly (Members’ Code of Conduct and Ethical Standards) Act establishes general principles of ethical conduct relevant to the duties, functions and obligations of members in the Legislative Assembly, and requires each member of the Assembly to ensure that their conduct in office conforms generally to the principles and the specific standards of the code. Clause 3 sets out the four principles established by the act which are: integrity, accountability, responsibility and the public interest.

Clauses 6 and 7 are to assist members and the general community. Each section of the code provides a commentary which explains the major reasons and the objectives which underpin each principle, and gives examples of appropriate conduct in particular circumstances. The standards set out specific procedures and forms of conduct in public office which are required to be observed by members of the Legislative Assembly. In cases of doubt, a member is required to make a judgment about what conduct or action is reasonable and responsible.

Part 2 of the code relates to commentary and standards. Principle 1, Integrity: clauses 1 to 3, integrity is required of members in the form of the lawful, honest exercise of the duties and responsibilities of a member uninfluenced by conflicts of interest. This principle is recognised in all Westminster style systems of government. Clause 4, Declaration and Registration of Interests, is currently provided for by standing orders and, in some respect, by the Legislative Assembly (Register of Members’ Interests) Act. The code, based on provisions to be included in the new act, will clarify and strengthen the public integrity requirements in relation to private interests which might be thought likely to affect the member’s advocacy or decision making.

Clause 7: this part of the code requires a member to make an oral declaration of a personal interest whenever they propose to speak in a debate or vote on a matter before the Assembly to which their interest is relevant. This form of declaration is currently only required in relation to contracts in which the member concerned has an interest. Conflicts of interest: clauses 8 to 11 require that members are required generally to avoid conflicts between their private interests and the official functions and responsibilities which they have as members, by managing the interest or disposing of it so as to ensure that no actual or apparent conflict of interest arises or continues.

Clause 12 deals with declaration of interest. This part of the code requires that a member shall not vote in any division upon a question in which the member is aware of an interest that he or she is required to register, unless the member has first declared the interest to the Assembly, irrespective of whether the interest has already been formally registered. Clause 13 deals with acting as a consultant advisor or advocate for any company or business interest, whether paid or unpaid, and is to be regarded as a declarable interest.

Clause 14 deals with members who engage in no other employment or business activity involving them in significant management responsibility or professional effort while they serve as a member of the Assembly. Honesty. Clause 15: members are expected to act honestly in all their official dealings and to correct significantly misleading or incorrect information given by them. Self-dealing, which is clause 16: this clause provides that a member is required not to misuse or to allow others to misuse any confidential or privileged information which has come to them through their official functions as a member for any private purpose, including for their personal advantage.

Clause 17: members are to be restricted by provisions of the proposed Legislative Assembly (Members’ Code of Conduct and Ethical Standards) Act from certain forms of private capacity employment for a period of one year after ceasing to be a member. Such post-service restrictions are widely imposed internationally, either by law - for example, in the USA - or by convention - in the United Kingdom. Former members of the Assembly will not be able to represent or take up employment or a directorship with, nor act as an advisor or consultant to, any company, organisation or other private interest with which they have direct and significant involvement in their capacity as a member of the Assembly in their last 12 months of office. An exception will be made in the case of appointments of former members to Northern Territory Public Sector agencies or government bodies. A breach of this requirement will attract prosecution under the act and a range of penalties according to the seriousness of the breach.

Clause 18 indicates former members are also to be prohibited from taking improper personal advantage of information provided to, or generated by, the Assembly to which they had privileged access as a member by the proposed legislation. A breach of this requirement will attract prosecution under the act and a range of penalties according to the seriousness of the breach.

Gifts are dealt with in clause 19. This clause provides that members in their official capacity may accept customary official gifts in accordance with normal social custom but are required not to seek or encourage any form of gift or benefit in their personal capacity.

Clauses 20 and 21 deal with contracts and other business relationships. These clauses require that a member shall not hold or continue to hold in their own capacity or through a third party a contract or like business arrangement for the provision of services to government bodies of the Assembly. Restrictions on members of the Assembly holding contracts or like business arrangements with the executive government are justified by the need to ensure the independence of members and the Assembly itself. Members are required to ensure that they have no financial dealings in their personal capacity either as a contractor, defaulter or consultant with the Assembly or the government. This constraint is not intended to exclude a member’s spouse or partner or a related person, as defined, from having such contracts or like business arrangements with the government, but such dealings will constitute a declarable interest and will be required to be registered and declared by a member in the prescribed circumstances. A breach of this requirement will attract prosecution under the proposed Legislative Assembly (Members’ Code of Conduct and Ethical Standards) Act and a range of penalties according to the seriousness of the breach.

Principle 2 of this act is accountability. Clause 22 requires that members observe the principle of accountability in relation to the functions of a member of the Assembly, and this principle is recognised in all Westminster style systems of government. Clauses 23 to 25 deal with accountability in terms of public office being a public trust. Clause 26 deals with public scrutiny and highlights that members are required to accept public scrutiny of their decisions. Clauses 27 and 28 deal with openness. Members are required in general to be as open as possible about the decisions that they take in their official capacity.

Principle 3 deals with responsibility. Clauses 29 and 30: members are required to ensure that their decisions conform with the principle of responsibility, that is, that they be not reckless or negligent but reflect the proper consideration of all relevant matters including the reasonably foreseeable consequences for those likely to be affected by them.

Clause 31: members are required to act responsibly in upholding the laws of the Northern Territory and Australia including this code, and to demonstrates standards of official conduct acceptable to the community at large. These obligations are not fully discharged merely by compliance with the letter of the law or this code.

Clauses 32 to 35: responsibility is discussed in terms of democratic principles and freedoms, good governance and leadership by example. Clause 36: members are required to recognise that the public service is expected to function as a non-partisan public resource to be treated in accordance with established conventions of public service neutrality. Clause 37: members are to take the initiative to discourage or prevent corruption and misconduct.

Principle 4, which is the fourth and final principle of the code, deals with the public interest. Clauses 38 and 39: the code requires members to contribute to good government by seeking to advance the public interest based on an honest, reasonable and properly informed judgement about what will best advance the common good of the people of the Northern Territory.

Part 3 of the bill relates to implementation. Clauses 1 to 3: the code acknowledges the supremacy of the Legislative Assembly in a democratic system of government and recognises that members are not employees in the usual sense, but are primarily responsible and accountable to the Assembly and their electorates. Accordingly, the Members’ Code of Conduct and Ethical Standards is to be created by the proposed new Legislative Assembly (Members’ Code of Conduct and Ethical Standards) Act which will create offences and penalties in relation to prohibition or restricted conduct by members of the Assembly including certain conduct arising after a member has left public office. In particular, certain forms of employment in the private sector within a period of a year after leaving public office, and misuse of privileged information by a former member will be prohibited and will be made the subject of prosecution and penalties according to the severity of the offence.

The existing Legislative Assembly (Register of Members’ Interests) Act, established the requirements for registration of pecuniary and other interests by serving members. The act is to be amended by the insertion of proposed new provisions that will significantly strengthen the requirements for annual registration and ad hoc declaration of members’ interests. The new act will also provide for claimed breaches of the requirements to be the subject of independent investigation by the Auditor-General, as an officer of the Legislative Assembly. Any penalty for a proven breach of the registration of interest requirements by a serving member is to be decided by the Assembly following investigation by the Auditor-General, whose role is to be limited to making inquiries, reaching findings of facts and providing a report to the Assembly in accordance with the requirements of procedural fairness. All other breaches of the members’ code of conduct and ethical standards will remain within the competence of the Legislative Assembly to investigate and decide as it sees fit.

The measures I have outlined will provide the Territory parliament with a rigorous and disciplined framework to deliver improved standards of transparency and accountability for all members. The introduction of the Territory’s first overarching legislation aimed at delivering open and accountable government, coupled with a rigorous code of conduct, strengthened registration of members’ interests and an increased role for the Auditor-General should be embraced by all members of this House. I call on all members of this House to support these measures, and I look forward to the Standing Orders Committee report in the October sittings.

Contact Details
Mr Ian McNeill
Clerk of the Legislative Assembly
Telephone: (08) 8946 1450
Fax: (08) 8941 2567
Email: ian.mcneill@nt.gov.au

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