Today’s question relates to
… the recent television advertising in Western Australia in relation to both RAC and AAMI offering “free” and priority roadside assistance whether a member of the automotive club or insurance companies to “first responders”. This offer is advertised during the COVID 19 pandemic.
This I believe is an offence under various Acts and Code of Conduct across various services.
I am sure this is not limited to the two examples I have provided for paid services, but may be extended in to breeching conditions of other voluntary organisations, statuary authorities, and community groups,
I have given the following examples from the Public Sector Management Act 1994 and the Police Act 1892. The Western Australia Police Code of Conduct 2010 says
This Code applies to persons employed under the Police Act 1892 and persons employed by the Commissioner of Police under the Public Sector Management Act 1994.
The Code of Conduct 2010 refers to receiving gifts (p. 6)
You must not solicit, give, or accept gifts or benefits for yourself, any other person or on behalf of the WA Police, unless authorised to do so in accordance with policy.
Accepting a gift or benefit in the course of your duty can be appropriate when the acceptance of those gifts or benefits will be beneficial to the employee’s work and reputation and will build positive social relations between the WA Police and the community, such as the gaining of gifts and gratuities (including fundraising) for registered charitable organisations. In most circumstances, gifts should be declined.
The reason for this is that accepting gifts may affect, or may be perceived as affecting, the performance of the official duties of employees. If any doubt exists, seek advice from your supervisor or Officer in Charge
In WA Local Government under the Local Government Act 1995 refers to the acceptance of gifts by elected members and staff. [My correspondent then provides the following which I infer is from a particular local government bylaw, it is not a quote from the Local Government Act 1995 (WA)):
- ACCEPTANCE OF GIFTS 2.1
a) A gift means a disposition of property or any other financial benefit, including contributions to travel, offers of hospitality and sponsorship made by an external person or organisation to a City of [REDACTED] Member or Designated Employee. It does not include property acquired by will, gifted by a relative, or offered by a statutory authority, government agency, or a non-profit association for professional training (Note: this definition does not include electoral gifts provided for by the Local Government (Elections) Regulations 1997.)
b) A notifiable gift is a gift worth between $50 and $300, or a number of gifts given by the same person within a 6 month period, with a total value between $50 and $300.
c) A prohibited gift is a gift worth $300 or more, or a number of gifts given by the same person within a 6 month period, with a total value of $300 or more.
d) An annual return is consistent with Section 5.76 of the Local Government Act 1995, a return lodged by a Relevant Person with the Chief Executive Officer, or by the Chief Executive Officer with the Mayor or Commissioner of the City of [REDACTED].
e) An interested person is a person who is undertaking, is seeking to undertake, or is reasonable to believe is intending to undertaken an activity involving the City of [REDACTED]’s approval, contracting or any other form of decision making discretion. An interested person may be the owner or an Officer, Employee, agent or representative of an entity that is undertaking, is seeking to undertake, or is reasonable to believe is intending to undertake an activity involving the City of [REDACTED]’s approval, contracting or any other form of decision making discretion.
My question to you is that a business of advertising and offering a gratuity to a member of various organisations committing or encouraging an offence to be committed?
Not knowing what other states and territories are being offered by various businesses, the examples I have given are applicable to WA, I would be interested in your legal opinion on this matter.
My immediate reaction is ‘no’ but let’s look into it further.
The authors of Hayes and Eburn Criminal Law and Procedure in NSW (6th ed, 2019, Lexis/Nexis; and even though it has my name on it, I did not contribute to the 6th ed, the authors are Rod Howie, Paul Sattler and Marissa Hood) say (at [11.46]):
To be guilty of counselling, procuring or otherwise assisting a person to commit an offence, the accessory before the fact must be aware of that the principal offender intends to do. The fault element is ‘knowledge’ of all the essential elements that make up the offence that the principal offender will commit. As can be seen from Giorgianni recklessness, that is foresight that the principal offender may commit an offence, is not enough.
That is the accessory has to be encouraging the person to commit an offence (even if they do not have to know that it is an offence).
But that’s NSW. WA is referred to as a code state, that is in theory at least, all the criminal law is contained in the criminal code unlike the ‘common law’ states such as NSW and Victoria.
The Criminal Code 1913 (WA) says at s 7:
When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say — … (d) Any person who counsels or procures any other person to commit the offence….
Under either common law or the Criminal Code are the RAC and AAMI counselling the commission of an offence? I cannot see it. They are not encouraging people to breach their code of conduct. Not everyone who is offered the service would be breaching a code (assuming this is a breach) and the auto clubs are not saying ‘and ring us even if you boss tells you not to’. They are offering a service, it is up to police or local government employees to decide whether to take that up and therefore it is up to them to decide whether that would be improper, or not. Licensed premises are offering alcohol for sale but they are not counselling drinking on duty by police. I could offer a police a gift without knowing it’s illegal; it’s up to the officer to say ‘no, I cannot’. This is an offer; it’s up to individuals to decide whether they can or should accept the offer.
Would it be an offence? I doubt it. The police code of conduct refers to soliciting, giving, or accepting benefits. Individuals are not soliciting (ie asking) for a benefit but let us assume this is an example of accepting a benefit. The code goes onto say:
Accepting a … benefit in the course of your duty can be appropriate when the acceptance of those gifts or benefits will be beneficial to the employee’s work and reputation and will build positive social relations between the WA Police and the community, such as …
The example that follows is an example but the words ‘such as’ make it clear it is not the only example. If a police officer has to go to work and his or her car won’t start and so he or she calls the RAC and they come and get it started, that would ‘be beneficial to the employee’s work and reputation’ and I suggest would also help ‘build positive social relations between the WA Police and the community’ because it allows the community to publicly say ‘we acknowledge your service’. I cannot see that anyone would think it was contrary to the code. It might be if the officer did it regularly or started using their office to get the service from someone else, eg a friend has broken down so the officer rings and identifies him or herself as an officer to take advantage of the offer. But the RAC and AAMI are not counselling or encouraging anyone to do that.
As for local government, recognising for example that in WA local governments operate Bush Fire Brigades and this offer may extend to them, it’s correct that the Local Government Act 1995 (WA) has provisions about gives to councillors and the CEO (ss 5.87A and 5.87B) but that is not relevant here as this offer is not being made to the CEO or councillors. Would it be corrupt? The Corruption, Crime and Misconduct Act 2003 (WA) does not actually define ‘corruption’ but I cannot see it unless the person making the offer, or accepting it, is expecting to, or prepared to act contrary to their office in return.
Personally I cannot see that accepting the offer of free roadside assistance during COVID-19 would be a breach of the Police Code of Conduct or Local Government Act or I would suggest any other code of conduct provided it is not offered, or accepted, with a view to influencing how a person performs their duty, or where a person uses their office (eg as a police officer) to get the benefit for someone who is not the subject of the offer.
Even if there is a breach by a particular person because of the terms of their employment neither the RAC nor AAMI are encouraging people to accept the offer in breach of those conditions (which they cannot know).
If it’s not a breach, and if it is RAC or AAMI are not encouraging a breach, it follows that in my view the companies are NOT committing or encouraging an offence to be committed.