Legislative Assembly (Members' Code of Conduct and Ethical Standards) Act 2008

The Act directly applies only to the 25 members of the Northern Territory Legislative Assembly. Every member, regardless of party, role or length of service, is bound by each rule in the Code. The Act does not apply to staff, public servants, contractors, lobbyists or other persons. However, the rules have indirect effects on several groups.

Constituents and members of the public are affected because rules 5 (honesty), 9 (accountability) and 11 (public interest) impose duties towards them. The commentary to rule 9 states that the people of the Territory are entitled to know why the Assembly or a member has taken a particular policy position. This creates an expectation of transparency, though no private right of enforcement is created.

Public servants are affected because rule 10 requires members to recognise the public service as a non-partisan resource and to treat public servants neutrally. This is designed to protect public service independence from political pressure, though again no mechanism for a public servant to complain is provided.

Persons and businesses that contract with the Territory are indirectly affected by rule 8, which prohibits members from holding interests in government contracts. This may reduce opportunities for members to have business interests in companies that supply the Territory. It also may deter some individuals from standing for election if they have existing contract interests, or force them to divest.

The effects on private enterprise and individual choice are notable. Rule 4 (commitment) restricts a member’s ability to hold outside employment or run a business that demands substantial time. This raises the opportunity cost of serving in the Assembly for entrepreneurs and professionals, potentially narrowing the pool of candidates from business backgrounds. Rule 8 prohibits a member from holding even a passive interest in a Territory contract, which may affect family trusts, partnerships or shareholdings. These restrictions are justified by the stated aims of preventing conflicts and maintaining public confidence, but they impose real costs on members’ economic freedom and may discourage risk-takers and business owners from seeking office.

The Act imposes a comprehensive set of duties on members, but confers very few legal rights. The duties are:

• The duty to act with integrity (rule 1).
• The duty to avoid conflicts of interest, actual or apparent, and to take steps such as divestment (rule 2).
• The duty to declare a declarable interest before voting (rule 3). The member may still vote after declaring - the duty is to disclose, not to abstain.
• The duty not to engage in other employment that involves a substantial commitment of time and effort (rule 4).
• The duty to act honestly and not to mislead (rule 5).
• The duty to respect confidences and not misuse confidential information (rule 6).
• The duty not to solicit gifts, and to disclose unsolicited gifts if required (rule 7).
• The duty not to hold an interest in government contracts (rule 8).
• The duty to be accountable (rule 9).
• The duty to act responsibly, including considering consequences, fostering listed democratic values, managing resources economically, and respecting public service neutrality (rule 10).
• The duty to act in the public interest based on honest, reasonable and informed judgment (rule 11).

The only express rights are implicit negative liberties. A member has the right to use their own judgment where a situation is not explicitly covered by the Code (Schedule Part 1 commentary). A member may accept an unsolicited gift, provided disclosure obligations are met (rule 7). A member may retain or acquire a declarable interest as long as it is declared before voting on the matter (rule 3). A member may hold other employment that does not involve a substantial commitment of time and effort.

There is no right to a hearing, to legal representation before the Privileges Committee, to appeal a finding of contempt, or to judicial review. The Act does not specify procedures for Privileges Committee inquiries; it merely says the Committee inquires and reports. The Assembly may then punish. This confers broad discretion on the Assembly and the Committee. For the affected member, procedural fairness depends on the Standing Orders and conventions of the Assembly, not on the Act itself.

The sole enforcement mechanism is section 5: the Assembly may refer an alleged breach to the Privileges Committee, which inquires and reports; if the Committee finds the breach established, the Assembly may punish the breach as a contempt. The Act does not define “contempt” or specify any range of penalties. By convention, a parliament may impose penalties such as admonishment, suspension from the chamber, or in extreme cases expulsion (though the Act does not explicitly authorise expulsion). The Act does not provide for fines, criminal prosecution, loss of salary, or disqualification from office.

This enforcement model has significant weaknesses from a compliance perspective. First, referral is at the discretion of the Assembly - a political body. Referral is unlikely if the majority party controls the Assembly and the alleged breach involves a government member. Second, the Privileges Committee is a committee of members of the Assembly. It is not an independent or external body. Its members may have conflicts of interest (e.g., a committee member may be a colleague or ally of the accused member). Third, the ultimate decision to punish is made by a majority vote in the Assembly, again a political judgment. This creates a risk that enforcement will be selective - applied to opposition members or minor breaches, while serious breaches by majority members are overlooked.

The Act does not create an individual complaint mechanism. A constituent, journalist, or public servant who observes a breach cannot trigger an inquiry under the Act. Only the Assembly (i.e., a motion passed by majority) can refer a matter. This concentrates enforcement power in the hands of the parliamentary majority, reducing the likelihood of enforcement against government members.

The practical effect is that the Act’s deterrent value depends on political culture and media scrutiny rather than on the threat of independent adjudication. The compliance burden for a member is to avoid actions that would provoke a political referral, not necessarily to avoid all ethical breaches. The costs of enforcement (time, political capital, reputational risk) are borne by the party that refers or punishes, providing an incentive to avoid difficult cases.

The Act explicitly recognises its interaction with several other legal instruments.

The Northern Territory (Self-Government) Act 1978 (Cth) section 21(3) prohibits a member who is a party to a contract with the Territory from taking part in debate or voting on a matter relating to that contract. The Code’s rule 3 commentary explains that the Code’s declaration-of-interest rules operate in cases where that statutory prohibition does not apply - i.e., for conflicts that are not covered by the Commonwealth Act. The Code does not replace the Commonwealth restriction; it supplements it.

The Legislative Assembly (Disclosure of Interests) Act 2008 is cross-referenced repeatedly. “Declarable interest” for the purpose of rule 3 is defined partly by reference to interests disclosed or required to be disclosed under that Act. Rule 7 on gifts also references that Act for disclosure requirements. The Code and the Disclosure Act are complementary: the Disclosure Act creates a register of interests; the Code creates a duty to declare before voting and to avoid conflicts. The two Acts are designed to be read together, and the Code expressly states it is intended to be read in conjunction with other relevant laws and the Standing Orders.

The Code prevails over the Assembly’s Standing Orders and other standards in case of conflict (Schedule Part 1 Commentary). This means the Code is hierarchically superior to internal parliamentary rules, but remains subject to the Act itself and any federal laws.

General criminal laws (e.g., bribery, corruption, secret commissions) are not mentioned in the Act, but they continue to apply independently. The Code does not create criminal offences; it creates a disciplinary regime within the Assembly. A member who misuses confidential information may also commit a criminal offence under other legislation, but the Code’s enforcement is separate and does not preclude criminal prosecution.

The Act does not create a civil cause of action. A breach of the Code does not invalidate a vote or a decision of the Assembly. The Code is a behavioural code, not a law of contract or tort. Its interaction with administrative law is minimal; decisions of the Assembly are generally non-justiciable under parliamentary privilege.

The Act (Act No. 35 of 2008) was assented on 8 December 2008 and commenced on 9 October 2009 by Gazette notice (Gazette S56). The reprint provided as in force at 9 October 2009 shows no substantive amendments between assent and commencement. According to the endnotes, a general amendment of a formal nature was made by the Interpretation Legislation Amendment Act 2018 (Act No. 22 of 2018) to the schedule. This amendment is described as “general amendments of a formal nature” - likely updating references or removing outdated provisions (e.g., references to ministerial titles). No substantive amendments to the principles or rules of the Code have been made in the period covered by the reprint. There is no evidence that the Act has been the subject of any significant policy-driven amendment. The Code has remained unaltered in substance since its commencement.

The lack of amendment history may indicate either that the Code is considered adequate or that amending it requires legislative time and political consensus that has not been achieved. Because the Act is a single short Schedule, any amendment would require a full Act amendment, not merely a resolution of the Assembly. The stability of the Code is a double-edged sword: it provides certainty but also means that gaps or ambiguities (e.g., the absence of an independent enforcement body) have not been addressed.

The Act does not refer to any litigation, and no case law is mentioned in the source text. Because the Act operates within the parliamentary privilege framework, its provisions are unlikely to be tested in court. Under common law parliamentary privilege, courts generally decline to review proceedings in Parliament for breach of internal codes. The Act itself does not confer jurisdiction on any court. Section 5 refers to punishment for contempt, which is a parliamentary contempt, not a criminal offence subject to judicial review. It is theoretically possible that a member could seek judicial review of a decision of the Privileges Committee or the Assembly on procedural fairness grounds, but such challenges would face high hurdles given the exclusive cognisance of Parliament. No reported decisions are available in the public record that discuss this Act. The Act has generated no litigation history of note.

Several features of the Act create pitfalls for members and those dealing with them.

1 Self-enforcement bias: The Assembly decides whether to refer, and the Assembly decides punishment. This creates a structural incentive to downplay breaches by majority members and exaggerate those by opposition members. A member cannot rely on independent enforcement; the Act protects the majority.

2 Overlapping interests in government contracts (rule 8): The prohibition on holding a direct or indirect interest in a contract with the Territory is absolute. It does not carve out minor holdings, superannuation funds, or publicly traded shares. A member who owns shares in a company that supplies stationery to a Territory department would breach the Code. The only way to comply is to divest. No exemption is provided.

3 “Substantial commitment” undefined (rule 4): A member who runs a small business or holds a directorship must assess whether it involves a “substantial commitment of time and effort”. The commentary says “at least equivalent to full-time employment” is the standard for parliamentary duties, but that does not clarify what counts as substantial outside work. A member could accidentally breach by taking on a board role that grows in demands.

4 Apparent conflicts (rule 2): The duty extends to apparent conflicts, not just actual ones. A member may be found in breach even if they have no actual conflict, if a reasonable observer would perceive one. This is a low threshold that could catch members who fail to manage appearances.

5 No grace period for disclosure (rule 3): A member must declare a declarable interest before voting. If a member realises after voting that they had a declarable interest, they may already be in breach. The Act does not provide a cure mechanism.

6 The Code prevails over Standing Orders: Most members are familiar with Standing Orders; they may not realise the Code overrides them in case of conflict. A member who follows Standing Orders but ignores the Code could face contempt.

7 Unqualified “public interest” (rule 11): Acting in the public interest requires an “honest, reasonable, and properly informed judgment”. This is highly subjective. A member who makes a decision that later appears self-serving or partisan could be found to have breached, even if they believed they were acting in the public interest.

8 No independent advice: The Act does not establish an ethics adviser or office to which members can confidentially seek guidance before acting. Members must rely on the Clerk or their own judgment, increasing the risk of inadvertent breach.

Compliance with the Act requires members to take a systematic approach to managing their interests, time and conduct.

Initial steps: Upon election, a member should review all existing business interests, employment, contracts, shareholdings, directorships and trusts. Any interest in a contract with the Territory must be divested immediately (rule 8). Any business or employment that involves a substantial time commitment (e.g., a professional practice, directorship with active duties, or other paid work) must be examined to see if it can be modified to meet the “substantial” threshold. If it cannot, the member must resign from that engagement.

Ongoing obligations: Members should maintain a written register of all interests that are declarable under the Disclosure of Interests Act and any other interests that could be considered declarable (e.g., as a consultant or adviser for remuneration) to ensure they can identify a declarable interest before voting. Before each division, the member should check whether their registered interests intersect with the subject matter. If they do, the member must declare the interest at the start of their speech, or if not speaking, before or as soon as practicable after the vote. A declaration should be specific - referencing the nature of the interest - not generic.

Gifts: The member should not solicit gifts from constituents or persons dealt with in an official capacity. Any unsolicited gift (e.g., a bottle of wine, tickets to an event) should be evaluated for disclosure under the Disclosure of Interests Act. Where in doubt, disclose. The safest approach is to refuse all non-trivial gifts.

Confidences: Members must maintain clear boundaries between official information and personal use. Any information obtained in confidence (through committee hearings, briefings, private meetings) should not be used for private benefit or shared improperly. This is particularly relevant for members who also run businesses or act as consultants.

Public interest decisions: When making decisions, members should document their reasoning, showing that they considered relevant matters and the foreseeable consequences. This record may be useful if a breach allegation arises. Relying on party whip or a cabinet directive is not a defence; the Code requires personal judgment.

Resourcing: Members must manage office budgets and staff economically. They should ensure staff are aware of the Code’s requirements, especially regarding conflict of interest and confidentiality.

Monitoring and advice: No independent adviser is provided under the Act, but members may seek informal advice from the Clerk of the Assembly or legal counsel on specific questions. They should obtain written advice and rely on it in good faith; though not a defence under the Code, it demonstrates intention to comply.

If a complaint arises: A member should cooperate with the Privileges Committee inquiry, provide full explanations, and consider legal representation (though not guaranteed). The ultimate sanction of contempt gives the Assembly broad discretion; the member’s best defence is to show diligent compliance with the Code’s rules and principles.