1.Preliminary Analysis of the Statute
Threshold questions
Constitutional validity
The 2017 Act fosters public trust with respect to the activities of government processes and Ministerial activities, which might bring the ministers into situations that, may amount to compromise of the public trust. Such situations include personal assets and relationships that are likely to affect the expense claims and decision-making processes. Therefore, this legislation prohibits and regulates such activities of the Minister to retain the public trust in the minister and in the government procedures.
Commencement
This Commonwealth of Australia Members of Parliament Integrity and Correctness Act 2017 (Cth) is to be enforced upon assent. The Act was assented to on July 3, 2017.
Jurisdiction
The Act is Commonwealth legislation; therefore, this statute may be applicable to any acts or events that take place in any state and territory within Australia. The Interpretation Act 1901 shall be applicable to interpret the legislation, as it is Commonwealth legislation.
Classification of Statute
Type of Act
This statute is a penal statute that subjects the offenders to penalty in case of breach of the statute. In R v Beckwith, it was held that any penal statute may be interpreted based on its narrow meaning unless the words of the provision is unambiguous and is clearly stated. Section [15AA] of the Interpretation Act [IA] 1901 states that while construing the provision of a statute, the interpretation that would best achieve the object or purpose of the Act shall be considered as the appropriate interpretation of the statute regardless of the fact whether such object or purpose is stipulated in the statute expressly.
However, section [15AA] of the IA requires the object or purpose of the legislation to be taken into consideration even if the meaning of the words used in the legislation that has been interpreted in this context is clear. In Mills v Meeking [1990], the court held that section [15AA] permits to determine more than one interpretation of any legal provision if that achieves the object and purpose of the concerned statute.
In R v L [1994], it was observed that though the provision of section [15AA] permits a court to determine more than one possible construction, that which promotes the object or purpose of the statute, it does not imply that court will not consider the actual words of the statute.
Identification of operative provisions
Section [4 (1)] of Commonwealth of Australia Members of Parliament Integrity and Correctness Act 2017 (Cth) (hereinafter shall be referred to as ‘the Act’) prohibits ministers to enter into personal relationships with member or staffs of parliament;
Section [4(2)] states that personal relationship is established if Minister kisses, hold hands, touches, caresses or makes contact in any other manner with the member or staffs of the Parliament;
Section [7(1)] holds a Minister guilty if he unlawfully makes any claim for an allowance, or illegally makes claims for expenses;
Section [7(2)] states that a unlawful claim is made if such claim made by the Minister does not fall within Schedule 1; The Minister infringing the provision shall be entitled to imprisonment for a period of 2 years and penalty of $20000 shall be imposed upon such Minister.
Section [9(1)] stipulates that closed circuit television cameras that are authorized by the Ministry of Parliamentary Integrity and Correctness must be fitted within the offices of the Ministers;
Section [9(2)] states that footage obtained from the cameras shall be admissible as evidence in order to determine offences under this statute.
Purpose and Context of the Act
Context: Immediate context
The immediate context shall include all intrinsic materials, which would include perusing the complete statute. If the immediate context is to be explored, the long title of the statute indicate that the context strikes a balance between providing a positive work culture for the members or staffs of the Parliament and regulating the activities and government processes in which ministers take part to foster public trust. The statute prohibits Ministers from engaging in personal relationship with any other member or staffs of the parliament and any failure to comply with this provision shall amount to a breach and entitle the Ministers to penalty set out under section [7(2)] of the Act.
There is a provision for installations of CCTV in the Minster offices and the footages retrieved from such CCTV can be used to determine offences. Such footages may be used as evidences against the Ministers if they are alleged to have been engaged in personal relationship with other members or staffs of the Parliament. The Ministers of Parliament are expected to ensure a positive work culture and are prohibited to enter into personal relationships with other members or staffs of the Parliament.
Context: Broader Context
The broader context may be related to the meaning of the statute, which may be influenced and regulated by the political and historical context as was held in Singh v Commonwealth. From the political context, the Second Reading Speech provided with respect to the Act may be used to interpret the provisions to determine offences. Further, the explanatory notes provided may be used to determine the broader context. This is because the explanatory notes explain the activities that erode or adversely affects a positive work culture, which includes personal relationship between Ministers or other staffs of the Parliament. The secondary readings explain the obligations that are imposed upon the Ministers and that since they have to work under extreme pressures, for extended hours and away from their homes. Such stressful circumstances may cause them to enter into personal relationship. The Act, therefore, regulates the activities of the ministers, prohibiting them to develop personal relationship with other members or staffs of the Parliament.
Purpose: Intrinsic aids
The purpose of the statute may be found by perusing the words of the statute and reading the words of the statute. As mentioned above, the objective of the statute is to provide a positive work culture and to prohibit Ministers from developing a personal relationship with the other members and staffs of the Parliament. However, when the statute is perused completely, the provisions favor safeguarding the trust of the Australian citizens on the Ministerial activities and government processes. It may further use words, dictionary, to explain the object of the statute. In Carr case, it was held that when Parliament pursue several objects and purposes, then the resources that are allocated to support such purposes must be taken into consideration to determine the dominant purpose and objective of the statute. In the given scenario, it can be concluded that the dominant purpose of the statute is to promote trust of the Australian citizens in the Ministerial conduct or activities with respect to their working lives that includes any activities, which might affect the decision-making process.
Purpose: Extrinsic aids
The purpose of extrinsic aids enables the courts to interpret any given legal provisions going beyond the words or the meaning of the words by going through various documents that are relevant to the particular legislation. In case of doubt with respect to the true meaning of a particular legal provision, the court may resort to second readings and explanatory notes to determine the legislative intent of the Parliament as set out under section [15AB] of the Interpretation Act 1901 (Cth). Even under the Common law, several types of extrinsic materials are used to interpret the legal provisions. However, though such extrinsic materials might assist the court in interpreting the legislation but it will not necessarily assist in determining the matter in issue. In CIC Insurance Ltd v Bankstown Football Club Ltd [1997], it was held that such external or extrinsic material may be used only under circumstances when consideration of such external materials is not restricted under statutes.
Applying Approaches to Statutory Interpretation
Modern approach to statutory interpretation (s 15AA) (operative provisions context and purpose)
The operative provisions include sections [4, 7 and 9] as mentioned above. The sections have sub-sections that shall be explained in details respectively.
Section [4(1)] – Prohibition of Parliament Ministers to enter into personal relationships with member or staffs of parliament
As per section [4(1)] of the Act, any Minister who enters into a personal relationship with members and other staffs of the Parliament is said to have committed a breach of the Act. The context in which the prohibition is imposed upon the Ministers is the stressful circumstances, which is formed when the ministers have to work for extended hours away from their homes and under tremendous pressures. The Ministers are likely to develop personal relationship with the members and staffs that work along with them under such stressful circumstances, which ultimately is likely to affect the decision-making.
The purpose of the statute is to ensure that the Australian citizens retain their trusts on the ministers and in the government, procedures that may be hindered if the activities or conduct of the Ministers gives rise to situations that might affect the decision-making of the Ministers. Such activities include personal relationships and personal assets which might influence the decision –making.
Section [4(2)] – Removal of Minister from Ministerial obligations
Since the purpose of the Act is to ensure that Ministerial conduct or activities which includes developing personal relationship, do not affect the decision-making process and retains the confidence of the Australian citizens in the Minister responsibilities and governmental processes. In order to determine what activities or conduct of the Ministers shall amount to developing personal relationship, the 2017 Act (Cth) purports to define such activities under section [4(2)]. It states that a Minister is considered to have entered into personal relationship with a member or other staffs of the Parliament, if the Minister holds hands, kisses, caresses, touches or makes contact in any other way with the members or staffs of the Parliament. Any Minister who commits a breach of this legal provision shall bore the burden of proof to establish that their actions are lawful.
Section [7(1)] – Ministerial allowances, claims and expenses
The provisions prohibits ministers from claiming illegal expenses, allowances and claims and imposes penalty upon the minister who infringes such provision. The purpose for incorporating this provision is to retrain ministers from acquiring money illegally as it would otherwise affect the trust of the Australian citizens that they have on the Ministers and in the government procedures. This is because the false claim made by the Minister in terms of allowance(e or expenses is equal to the payment that an employee takes from the employer. There must be a valid record of all the expenses that are being incurred by the Ministers as it ensures accountability and transparency within the systems, which in turn, retains the confidence of the public in the ministerial responsibilities as well as in the governmental procedures.
Section [7(2)] – Claim excluded from Schedule 1 is unlawful
This provision renders any claim as unlawful if it is not mentioned in [Schedule 1]. In other words, to ensure that Ministers do not make false claims regarding allowance and expenses, the Act has specifically mentioned that the claims not included within [Schedule 1] shall be considered as unlawful claims.
Section [9(1)] – CCTVs installations in ministerial offices
The objective of the statute is to regulate the activities of the Ministers to prevent compromise of the trust that the public has on the Ministers and the government procedures. In order to foster the trust of the Australians on the ministers with respect to the conduct of their working lives, the act incorporated provisions pertaining to installation of CCTVs within the offices of the Minister of the parliament.
The provision permits installation of CCTV cameras in all the offices of the Minister to keep a watch on the activities of the Ministers only if the Ministry of Parliamentary Integrity and Correctness have authorized the installation of such cameras in the Minister Officers.
Section [9(2)] – Admissibility of CCTV camera footage as evidence
The context and purpose of incorporating this legal provision in the 2017 Act (Cth) is to regulate the activities of the Ministers, which also includes prohibiting the Ministers from engaging in to activities. It includes activities like developing personal relationship with other members and staffs of the Parliament that might affect the decision-making responsibilities and the confidence of the public in the Ministers working lives.
Therefore, to achieve the purpose and objective of the Act, the camera footage is admissible as evidence to determine whether any of the activities of the Minister amounts to a breach of the provision under the 2017 Act (Cth).
Section [15AA] of the Interpretation Act 1901 (Cth)
The provision of this Act states that a provision must be interpreted in a manner that best achieves the object and purpose of the statute. Despite the meaning of the words of a statute being clearly stated, the court shall consider the objective and purpose of the legislation. As was observed in the Mills’s case that a court may consider the purpose of the Act and determine more than one interpretation that is possible. However, the decision given in R v L must also be considered which does not permit the court to disregard the actual words of the statute while determining more than on interpretation of any given legal provisions.
In this scenario, if the operative provision under section [4] is taken into consideration, the wording of the provisions is clearly stated. It clearly states that a minister that enters into any personal relationship with other member or staffs of the Parliament shall be said to have committed a breach of the 2017 Act. The personal relationship is said to exist if the Minister touches or kisses or makes any contact in any other manner with the staffs or member. Similarly, the words of the other operative provision under section [7 (1, 2] clearly states that ministers are prohibited from making unlawful claims with respect to allowance, claims or expenses. Lastly, section [9] of the statute states that CCTV cameras should be installed in every office of the Ministers to determine whether they engage in activities that are prohibited under section 4 of the Act and such footage shall be admissible as evidence to determine offences.
Now, if the object and purpose of the Act is taken into consideration under section 15AA of the IA, it can be construed that the legislative intent behind such provision is to retain trust of Australian citizens in the Minister and government procedures. To ensure such trust is maintained, the Ministers are prohibited from entering into activities that is likely to affect the decision-making responsibility. Two ways to regulate the activities of the ministers have been stipulated under section [4 and 7] of the 2017 Act and section [9] of the 2017 Act shall apply to determine the breach of the above two provisions.
Analysis of the Operative Provision: Intrinsic Aids
As per the modern approach to statutory interpretation, the Interpretation Act 1901 (Cth) has been passed to interpret the legislations. The modern approach is based on the doctrine of ‘parliamentary sovereignty’ according to which it is appropriate to construe the words of the provisions to construe the legal intent of the parliament in incorporating the provision.
Section [15AA] of the IA 1901 has been enacted to give a purposive approach to the statutory interpretation as the section assists in interpreting the operating provision using the purpose and context of the legislation. While the purpose of the statute can be determined by reading the entire statute or by reading the object of the statute as was held in Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1924). The context may be determined from the political and historical context of the statute. The Act should be read from beginning to end as was held in Patman v Fletcher’s Fotographics Pty Ltd (1984) and words should be assumed to have been used consistently as was observed in Craig Williamson Pty Ltd v Barrowcliff [1915].
It can be interpreted from the words of the provisions under section [4] itself that Ministers are prohibited from developing personal relationships with members and staffs of Parliament and any breach of this provision shall result in removal of the Minister.
Here, Amelia and Dr. Bradley developed a personal relationship despite being aware that Amelia is the Minister and Dr. Bradley was a staff of Parliament.
CCTV camera footage shall be used as evidence for determining such breach of the provision under section [9] of the Act.
Their personal relationship can be established through the CCTV camera footage that demonstrates that they have kissed each other.
Further, the minister’s unlawful claims shall entitle them to penalty and imprisonment as held under section [7] of the Act. Claims outside Schedule 1 shall be rendered as unlawful. Where the maximum amount payable for a rental of a property for duration of Parliamentary Sitting Days is $190 per day, Amelia claimed $1329 per week as rental where three weeks expenses claimed are unaccounted for.
All words are assumed to carry meaning
The general principle of interpretation states that courts must not consider any word of the provision as insignificant and every word must be given some meaning and effect prima facie. While interpreting the words, the dictionary meaning as mentioned in the statute should be primarily applied.
Here, the meanings of the term in the statute include the following:
Minister denotes any elected member of Federal House of Representative of Federal Senate. Amelia McTavish is member of the Australians for Freedom Party (‘AFP’) in the Federal House of Representatives.
Staff denotes any administrative staff and Dr Bradley Hollander is a policy advisor in the Minister for Sport and Recreation’s office.
Personal relationship signifies physical, intimate and sexual relationship or one that extends beyond working hours and excludes spouses. The phrase ‘enter into’ refers to any conduct carried out by Minister to encourage or facilitate to begin personal relationship with another staff. The phrase ‘engaging with’ refers to a conduct carried out by Minister to continue duration of personal relationship.
Amelia and Dr. Bradley were not married and started meeting after Parliamentary meetings and kept their personal relationship secret and continued the same. They exchanged a brief kiss after extended hours. After going through the Act ordinarily or from beginning to end, it is clear that they entered into a personal relationship with each other contrary to section 4 of the Act.
Latin Maxims
Noscitur a sociis
This implies that a word of wide possible meaning is usually limited by the context in which it appears. Here, the phrase ‘enter into’ refers to a conduct that is entered into by Ministers to encourage or facilitate personal relationship. The fact that Amelia and Dr. Bradley started meeting despite being aware that they are Parliamentary members and staffs can be interpreted as a conduct to encourage personal relationship in this context.
Ejusdem generis
The Latin maxim assume the identification of group of like matters and puts limitation on words that are otherwise of general application such as etc, or, any other. The use of “or” while describing ‘personal relationship’ and ‘enter into’ indicates that main specific matters or conduct within a broad category to which it applies has been made like ‘ physical, sexual and relationship after working hours ’ all denotes personal relationship while ‘encourage, facilitate’ establishes that parties entered into personal relationship.
Extension of the Analysis of the operative provisions: Extrinsic Aids
As per section [15AB] of the IA 1901, any external or extrinsic materials may be used to determine the object or purpose of the legislation, thereby, confirming the literal meaning that was intended by the Parliament while incorporating the concerned provision as was held in Commissioner of Australian Federal Police v Curran (1984) 55 ALR 697 at 706–7.
However, if the provision under consideration is clearly stated , external materials may be referred to but it cannot be used to alter the interpretation that the court would place simply by construing the provision as observed in Re Australian Federation of Construction Contractors: Ex parte Billing (1986) 68 ALR 416 at 420.
The extrinsic material in this case includes the second reading speech and the explanatory note. However, even if they are referred to while construing provisions of section [4 and 7], the provision is clear enough to understand the intention of the Parliament which is to prevent Ministers from developing personal relationships with other staffs and prohibit them from making false allowance or expense claims. The intention is to retain public trust in ministers and government procedures by regulating including prohibiting ministers from engaging in activities that would affect such trust or decision-making responsibility.
2). In regards to the amendments proposed regarding the 2017 Act (Cth), the amendment shall make the law related to regulation of Ministerial responsibilities more stringent and effective. Firstly, in the 2017 Act (Cth), the onus of proof was imposed on the Ministers only who shall have to establish that they did not enter into any personal relationship with the other staffs or members of Parliament. The proposed amendment states that extensive consultation shall be carried out to reverse the onus of proof, giving chance to relevant family members and community groups to have a say in determining the offence. Secondly, the bill proposes recording of personal interests using technology to confirm the disclosure made by the Ministers to avoid issues that arose in the case, where three weeks rental amount were unaccounted.
Therefore, I believe that the proposed amended bill shall aim at addressing or avoiding all the issues that may arise while regulating the ministerial activities and it shall make such regulation more effective to ensure accountability and transparency in government procedures and ministerial activities, which would further retain public trust in the government and ministers.
Conclusion:
Based on the interpretation of the provisions of section [4], [7] of the 2017 Act (Cth), it can be held that Amelia had committed a breach of the statute and is liable to penalty.
References:
Carr v Western Australia [2007] HCA 47
CIC Insurance Ltd v Bankstown Football Club Ltd [1997]
Commissioner of Australian Federal Police v Curran (1984) 55 ALR 697 at 706–7
Craig Williamson Pty Ltd v Barrowcliff [1915] VLR 450, 452.
Interpretation Act 1901(Cth)
Metropolitan Gas Co v Federated Gas Employees’ Industrial Union (1924) 35 CLR 449, 455
Mills v Meeking [1990] 91 ALR 16 at 30-31
Patman v Fletcher’s Fotographics Pty Ltd (1984) 6 IR 471
R v Beckwith [1981] Crim LR 646
R v L [1994] 122 ALR 464
Re Australian Federation of Construction Contractors: Ex parte Billing (1986) 68 ALR 416 at 420.
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