Page 2753 - Week 07 - Wednesday, 6 June 2012
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the announcement of the intention to do so. I remind members that this bill has not yet been debated and passed in full and that at the time of presentation its effect was retrospective; left unamended, that remains the case.
Apart from the procedural and administrative dilemma the provisions would instantly create within and outside the territory, it is utterly abhorrent to create a criminal offence out of an activity that may well have been legitimately conducted at the moment that Mr Smyth presented the bill. People could not, and still may not, know that they were being shoehorned into possible criminal charges by Mr Smyth’s bill. The offence in proposed section 216B is triggered if a party receives one or more gifts from a single person or entity of more than $50,000. The penalty for this offence is substantial. Depending on the definition of “receive”, it may be possible that this offence could lead to a party being caught by this offence, unwittingly, simply by being given an amount that led to this section being contravened.
It is not good enough to assume that managing legal risk should involve watching Mr Smyth’s every move in this place. People should have reasonable notice of a potential breach of the law. While I can appreciate the common sense in requiring the benefit received from a substantial gift to be disclosed, I cannot see any sense in making the person who donated the gift a criminal, even on an interim basis.
As a further example, as the offence treats a range of entities as one party, it may be possible for someone to receive an amount of less than $50,000 without knowing that this amount, combined with other amounts received by other people, has caused the cap to be breached. There is no defence that can be relied on in Mr Smyth’s bill.
The bill, in substance and by its retrospectivity, trammels the rights of citizens. I remind members again that section 17 of the Human Rights Act expressly protects the right of a person to engage in public affairs. That is a right that should be restricted only with some caution, and I see no such caution in Mr Smyth’s bill. Further, section 25 of the Human Rights Act is very clear on the issue of retrospective offence provisions. It says:
No-one may be held guilty of a criminal offence because of conduct that was not a criminal offence under Territory law when it was engaged in.
The government continues to express its concerns in relation to the technical correctness of this bill also. For example, the use of the word “gift” in the proposed offence provisions raises the issue of whether payments are covered by these offences. “Gift” is defined in section 198 of the Electoral Act to mean:
… a disposition of property made by a person to another person, being a disposition made without consideration in money or money’s worth or with inadequate consideration, and includes the provision of a service (other than volunteer labour) for no consideration or for inadequate consideration …
There is a strong argument that it would be relatively easy for donors to find ways to give money to political parties which do not fall within this definition of “gift”, which is now at odds with the new definition of “gift” adopted by the Assembly in May.
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