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Wednesday, 29 June 1994
Page: 2199


Senator COLSTON —On behalf of the Standing Committee on Regulations and Ordinances, I give notice that, at the giving of notices on the next day of sitting, I shall withdraw business of the Senate notice of motion No. 1 standing in my name for the next day of sitting. I seek leave to make a short statement.

  Leave granted.


Senator COLSTON —On 30 May 1994 I reported to the Senate on the committee's concerns with this instrument, which related to subjective and imprecise phrases and provisions which are possibly harsh or breach personal rights. The Minister for Aboriginal and Torres Strait Islander Affairs (Mr Tickner) has now provided the committee with information which meets its concerns. The committee is grateful for this cooperation. Mr President, as usual, I seek leave to incorporate the committee's correspondence in Hansard.

  Leave granted.

  The correspondence read as follows

6 May 1994

The Honourable Robert Tickner, MP

Minister for Aboriginal and

Torres Strait Islander Affairs

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to the ATSIC (Misbehaviour) Determination No 1 under s.4A of the Aboriginal and Torres Strait Islander Commission Act 1989, considered by the Committee at its meeting of 5 May 1994.

The provisions of paragraph 3(1), which determine misbehaviour for the purposes of the Act, include several expressions which are imprecise and which require subjective judgments. Illustrations are "seriously disruptive" behaviour; "misleading information" and "behaviour of a member of an Aboriginal body in the capacity of member of that body that brings the body, or another Aboriginal body, into public disrepute". The Committee would appreciate your advice on whether these expressions are appropriate, given that misbehaviour may result in officers or elected representatives being suspended from office or having their appointments terminated.

Also, paragraphs 3(1)(j) and 3(2) provide that conviction of an offence punishable by imprisonment is taken to be misbehaviour for the purposes of the Act. The Determination then provides that a person is taken to have been convicted of an offence if, among other things, the person has been charged with and found guilty of an offence, but discharged without conviction, or the person has not been found guilty of an offence, but a court has taken the offence into account in passing sentence on the person for another offence. Under these provisions persons are deemed to have been convicted of matters for which the court decided they should not be convicted or for which they have not even been found guilty.

The Committee considers that these provisions may operate harshly and breach the personal rights of those affected. The Committee accepts that the provisions are based on the existing s.85ZM of the Crimes Act 1914. In that Act, however, the provisions are not used to penalise anyone, as is the case in the present Determination. Indeed, s.85ZM expressly applies only to the Part of that Act dealing with "Pardons, Quashed Convictions and Spent Convictions". That is a different concept from the present one, in which people are not being considered for a pardon or the quashing of a widely defined conviction, but are having non-convictions included in assessments relating to current decisions.

The Committee would be grateful for your advice.

Yours sincerely

Mal Colston

Chairman

Senator Mal Colston

Chairman

Senate Standing Committee

Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Mal,

I refer to your letter of 6 May 1994 regarding ATSIC (Misbehaviour) Determination No. 1 under section 4A of the Aboriginal and Torres Strait Islander Commission Act 1989 (`the ATSIC Act') which was considered by your Committee at its meeting of 5 May 1994. I have noted the Committee's comments on the Determination.

Before dealing with the particular issues which the Committee raises I make the following general comments on the Determination:

  it was drafted in the light of the decision of the Commission as to the matters which the Commission wished to include; some of these matters were subsumed in the expressions used;

  in drafting the Determination the possible serious consequences of a breach were taken into account and the expressions used were as precise as the subject matter permitted; and

  no action would be taken by me to suspend or terminate the appointment of a Commissioner (section 40 of the ATSIC Act), terminate (with the agreement of the Commission) the appointment of the Chief Executive Officer (section 53 of the ATSIC Act), a Regional Councillor (section 122A of the ATSIC Act), or suspend or remove from office a Chairperson of a Regional Council (section 127C of the ATSIC Act), without my satisfying myself that misbehaviour (if relevant) had been fully established and, of course, my decision would be subject to all the usual means of administrative review. Sections 40, 122A and 127C contain provisions for parliamentary review before effect could be given to a decision to terminate an appointment.

In relation to sub paragraph 3(1) of the Determination you express concern that several expressions used are `imprecise' and `require subjective judgments'.

Turning to the specific matters you raise in paragraph 2 of your letter:

  the expression `seriously disruptive' in subparagraph 3(1)(a)(i) of the Determination is to be read in the light of subparagraph 3(1)(a)(ii) which makes it clear that, to constitute misbehaviour, such disruption must have continued after the person presiding at the meeting concerned had requested the disrupting person to refrain from the disruption. In my view this provides a factual requirement which should obviate subjective judgment;

  `misleading information' is a phrase which should be read in the context of subparagraph 3(1)(c) and the meaning given to the phrase is qualified by the purpose stated in that subparagraph ie the information must have been provided `for the purposes of', or result in, the payment of remuneration or allowances. To give misleading information for the purpose stated appears to me to be serious and the phrase, in context, appears capable of objective application; and

  `behaviour' which brings an Aboriginal body `into public disrepute' is a catch all expression; to specify all types of behaviour which could have such an effect would not be feasible, particularly as behaviour which might be acceptable in some situations would not be acceptable in other situations. The phrase is frequently used in a similar context in constitutions of clubs and associations and it should be possible to apply this subparagraph objectively in the light of the circumstances of any particular case which arises.

In paragraph 3 of your letter you refer to the provisions of subparagraph 3(1)(j) and subsection 3(2). As you point out, the provisions in subsection 3(2) mirror the provisions in subparagraphs 85 ZM(a), (b) and (c) of the Crimes Act 1914. While section 85 ZM is in a Part dealing with `Pardons, Quashed Convictions and Spent Convictions' it would seem to me appropriate to regard conviction of an offence (Determination 3(2)(a)) and a finding of guilt in relation to an offence, without conviction (Determination 3(2)(b)), as grounds for suspension whatever the legislative source of the wording of those provisions.

Section 16BA of the Crimes Act (copy attached) makes provision for a person `convicted of a federal offence or offences' to admit guilt in respect of other alleged offences with the consequences that, while the offence concerned is taken into account in sentencing, it may not subsequently be the subject of fresh proceedings. The circumstances in which a court would take such an unproven offence into account appear to make it appropriate that such an offence should also be relevant in considering whether misbehaviour has occurred.

I have in mind that the Commission has significant administrative responsibilities including the making of grants, loans and guarantees out of a considerable appropriation from the Parliament. From 1 July 1994 Regional Councils will also have such responsibility.

Such responsibilities require considerable accountability. I am sure you will agree that striking a balance between public accountability on the one hand and personal rights on the other is a difficult matter. It is my view that the Determination strikes an acceptable balance.

The provisions of the ATSIC Act referred to above confer a discretion upon me in relation to suspension, termination or removal from office. I would, of course, be mindful of the care needed and the import of your comments in exercising that discretion.

I hope the above comments will be of assistance to your Committee.

Yours sincerely

Robert Tickner

27 May 1994

2 June 1994

The Honourable Robert Tickner MP

Minister for Aboriginal and Torres

Strait Islander Affairs

Parliament House

CANBERRA ACT 2600

Dear Minister

I refer to your letter of 27 May 1994 on aspects raised by the Committee of the ATSIC (Misbehaviour) Determination No.1 under s.4A of the Aboriginal and Torres Strait Islander Commission Act 1989. The Committee considered the letter at its meeting of 2 June 1994.

The Committee is grateful for the advice, which meets all its concerns with the exception of the provisions of paragraphs 3(2)(b) and (c). In this context, the Committee emphasises that s.85ZM of the Crimes Act 1914 operates to the benefit of individuals, as does s.16BA of the same Act. The Committee believes that it is inappropriate for the present Determination to use similar provisions to prejudice individuals and that it would strengthen personal rights if you gave an undertaking to delete paragraphs 3(2)(b) and (c).

On 30 May 1994, I gave a protective notice of disallowance of the Determination for 15 sitting days after that date. In view of this it would be appreciated if the Committee could receive an early reply to this letter.

Yours sincerely

Mal Colston

Chairman

24 June 1994

Senator Mal Colston

Chairman

Senate Standing Committee

Regulations and Ordinances

Parliament House

CANBERRA ACT 2600

Dear Senator Colston

Thank you for your letter of 2 June 1994, in relation to ATSIC (Misbehaviour) Determination No. 1 (`the Determination').

You have indicated that the only provisions of the Determination which cause your Committee continuing concern are the provisions of sub-paragraphs 3(2)(b) and (c).

These provisions were inserted to give effect to one of the recommendations of the Commission at its Board Meeting on 26-29 November, 1 December 1993 in relation to action and/or conduct which it regarded as misbehaviour. The recommendation concerned referred to:

`conduct leading to a sentence or a fine for an offence involving dishonesty where a conviction is not recorded . . . '

In view of your Committee's objection, I am prepared to delete subparagraph 3(2)(c) from the Determination.

In relation to subparagraph 3(2)(b) I point out that:

  the words `the offence` in that subparagraph refer to an offence as defined in subparagraph 3(1)(j) of the Determination ie `an offence (for which a person may, on conviction, be imprisoned)';

  such an offence is clearly likely to be an offence sufficiently serious to justify my considering suspension from an office in ATSIC or a Regional Council of the person concerned even if a Court, presumably on the basis of mitigating circumstances, discharges such an offender without recording a conviction.

As I pointed out on page 3 of my letter of 27 May 1994 the Commission and Regional Councils (after 1 July 1994) have significant administrative responsibilities involving the disbursement of a considerable appropriation from the Parliament and the Commission is entitled, I believe, to expect that Commissioners, Commission officers, and Regional councillors be persons of integrity and probity.

The discretion vested in me in such matters (to which I referred in my letter of 27 May 1994) would enable me to approach each case on its merits and, in particular, to take into account any reasons given by a Court for not recording a conviction if relevant to the person's fitness for office.

In these circumstances I cannot see any likelihood of subparagraph 3(2)(b) operating `to prejudice individuals' and request that your Committee reconsider its objection to the subparagraph.

In amending the Determination it may be necessary to make a formal amendment to sub-paragraph 3(1)(j) to make it clear that the word `offence' includes convictions for more than one offence and also includes a conviction or convictions resulting in a single sentence imposed for more than one offence. I trust that such an amendment would not cause any concern to your Committee.

Yours sincerely

ROBERT TICKNER