31 May 2017

2nd Reading Speech

The Hon. ADAM SEARLE ( 16:21 ): I lead for the Opposition in debate on the Parliamentary Contributory Superannuation Amendment (Criminal Charges and Convictions) Bill 2017. The Opposition supports the bill wholeheartedly. The aim of the bill is to amend the principal Act, the Parliamentary Contributory Superannuation Act 1971, to extend the current disqualifications from receiving a pension under the scheme to include a person who is both charged with, and convicted of, a serious offence as defined after ceasing to be a member for conduct that occurred while the person was a member.

Presently, the disqualification applies if a person is a member and is convicted while a member, or charged while a member and then subsequently convicted after having ceased to be a member, of a serious offence as defined—that is, a member now cannot avoid losing a publicly funded pension by resigning before being charged. There have been a number of resignations in recent years by members fearful that they would be charged. It is no surprise that Labor supports this bill. In a sense, the origin of the bill and its parliamentary process emanates from a letter from the Leader of the Opposition to the then Premier dated 18 September last year, which in part states:

Dear Premier

The community of New South Wales is entitled to expect the highest standards of conduct from its elected representatives and public officials.

Given recent developments, I propose that we work together to restore the community’s trust in our Parliament and democracy. It is important that parliamentarians abide by the laws they themselves make and I hope that we can work together to ensure that a proper penalty regime is in place to respond to recent events.

Firstly, I wish to indicate my support for legislative changes to the parliamentary superannuation scheme to ensure that members, or former members, who are found guilty of misconduct in public office lose the entitlement to the taxpayer-funded part of the benefits that they would otherwise draw from the scheme.

The Leader of the Opposition went on to say in his letter:

You may recall that in 2006, there was bipartisan support for changes to the law to close a loophole that would have allowed members of the scheme convicted of a serious offence to continue to receive benefits from the scheme.

I understand that you have sought advice on the situation that has arisen since the former MLC, Eddie Obeid, was found guilty of misconduct in public office. I ask that you share this advice with me and that, in line with the precedent established in 2006, we work together to ensure that the community’s expectations are met.

The number of members of Parliament who are part of this pre-2007 superannuation scheme is significantly fewer than there are presently members in each House. A large number of members of Parliament are not in this scheme.

The Hon. Duncan Gay: A small but important group.

The Hon. ADAM SEARLE: Neither am I—just to disclose that lack of interest. The point is that section 4A of the principal Act provides that the scheme is closed to members elected at or after the 2007 State general election.

The Hon. Dr Peter Phelps: Thank you, Mark Latham.

The Hon. ADAM SEARLE: I acknowledge that interjection. Any member elected at or after the 2007 election has different or lesser superannuation entitlements, and those entitlements are unaffected by this legislation. Their payments cannot be forfeited by this legislation regardless of what they have been charged with or convicted of. The provisions of the bill build on those currently in the principal Act. Current section 19AA applies to a person who ceases to be a member while a serious offence is pending against him or her. If that person is then convicted of a serious offence he or she ceases to have any entitlement under the fund. Section 19AA (i) is replaced and now includes, in subparagraph (b), a person:

… who ceased to be a member if proceedings for a serious offence are instituted against the person for conduct that occurred when the person was a member.

If the person is in receipt of a pension that payment then ceases. If the person has taken a lump sum the lump sum is to be repaid. That lump sum may be reduced by the person’s net contributions. The trustees of the fund may make any other deductions from the lump sum to be repaid to ensure that the person is dealt with in the same manner as if the person had not elected to convert the pension to a lump sum. New section 19AA (4B) covers the position where a conviction is later quashed. New section 19AA (2) seems to be quite novel and allows the trustees to lift the suspension of the pension pending the finalisation of the criminal proceedings, if satisfied that the suspension is not in the public interest. This applies not just to those disqualified under the bill but also to those, as we understand it, disqualified under the unamended bill.

There is an important change to the definition of “appeal period”. It will now be the period in which an appeal can be lodged or the period of 12 months after conviction, whichever is the earlier. As I understand it, that clarifies the consequences of some legal advice received by the Government. Section 19AA (10) of the principal Act defines “serious offence” to mean an offence punishable by imprisonment for life or for a term of five years or more, or an “infamous crime”. An infamous crime is a crime involving such moral turpitude that would result in the person not being believed in a court of law. It is a somewhat archaic term but it carries with it that sense of moral turpitude undermining any moral authority. Common law offences, such as misconduct in public office, do not have a statutory maximum penalty. However, the provisions of section 21 (3) (a) of the Interpretation Act mean that such offences are regarded as serious offences and if they were not, one would think that “infamous crime”, no matter the uncertainty of that somewhat colourful phrase, would probably have included that in any event. Maybe, because the historical background to this bill and the conviction of a common law offence, the term “infamous crime” is quite apt in the legislation.

Some examples of what might be included as a serious offence are interesting. Larceny under section 117 of the Crimes Act is punishable by imprisonment for five years, and is therefore caught as a serious offence under these provisions. Dangerous driving occasioning death under section 52A of the Crimes Act is punishable by imprisonment for 10 years, and therefore also would be caught. Dangerous driving causing grievous bodily harm also under section 52A of the Crimes Act is punishable by imprisonment for seven years, and thus would be caught. The penalty for lying to the Independent Commission Against Corruption is five years imprisonment pursuant to section 87 of the Independent Commission Against Corruption Act, and therefore would be regarded as a serious offence under this legislation. Swearing a false statutory declaration under section 25 of the Oaths Act has a maximum penalty of five years, and doing so to gain a material benefit has a seven-year maximum penalty. These would all be covered by the legislation now before the House.

Attention should also be drawn to section 246 of the Crimes (Sentencing Procedure) Act, which is an amendment proposed by this bill. If media reports are accurate, that may be of immediate relevance. This provision is similar to section 24B of the Crimes (Sentencing Procedure) Act, which provides—as the Minister has just pointed out—that in sentencing an offender the court must not take into account as a mitigating factor in sentencing the consequences for the offender of an order imposed because of the offence under confiscation or forfeiture legislation.

That has parallels with the current bill. The public policy should be very clear: taxpayer-funded benefits should not be payable to those who have forfeited public trust.

The Hon. Dr Peter Phelps: Hear, hear!

The Hon. ADAM SEARLE: I acknowledge the interjection by the Hon. Dr Peter Phelps. Criminal convictions for serious offences necessarily mean a forfeiture of public trust. This bill is an entirely appropriate use of public policy. The Opposition wholeheartedly supports the bill.