“This article is about some sus stuff… the the way in which we taxpayers fork out to keep undeserving people enjoying a lifestyle that they have forfeited.” Legal columnist HUGH SELBY says letting an  offender keep money paid “to do nothing” shows, contrary to common sense, that crime and corrupt conduct do pay.

“If it looks like a duck, quacks like a duck, and swims like a duck, then it’s odds on that it’s a duck”, but how about we make some substitutions?

“If it looks sus, smells sus, and acts sus, then it’s odds on that it’s sus.”

This article is about some sus stuff. It is not about ducks.

The sus stuff is the way in which we taxpayers fork out to keep undeserving people enjoying a lifestyle that they have forfeited.

Even occasional followers of our news will know about these five examples of “susness” (Hugh! – ed). In the interests of fairness, every reader is reminded that those named below have not accepted the adverse findings made about them by present or past judicial officers.

1. Tasmanian Supreme Court judge Gregory Geason was paid around a half million dollars to not do his job from November 2023 until his mid-November 2024 resignation. That resignation followed his conviction in the Tasmanian Magistrates Court.
2. ACT CIT CEO Leanne Cover, was found in June by the ACT Integrity Commission to have acted in a corrupt way. She had been on paid leave for two years, at $360,000 per year, so $720,000, to not do her job. She resigned.
3. NSW Police officer, Kristian White, tasered Clare Nowland, aged 95, who died one week later, was suspended on pay for around 18 months until a jury found him guilty of her manslaughter in November. He was paid to not do his job. He has now been dismissed. He is to be sentenced in 2025.
4. The ACT Integrity Commission inquiry, Operation Kingfisher, into the 2019/2020 Campbell Primary School renovation shenanigans, where local construction firm Manteena didn’t get the contract it should have (and we paid Lendlease rather more to do the job), seems to have no end date. There were public hearings in 2023 and again in July 2024. Since then there has been silence. It’s obvious that one or more people have lied on oath. The question is who lied about what? It may be that they should have been dismissed some time ago. They are still working on “borrowed time”. They know who they are, even if we don’t.
5. Then there is senior public servant, Kathryn Campbell, about whom has been said in the context of the Robodebt scandal:

• Committed multiple breaches of the public service code of conduct; 

• Failed to ensure internal and external legal advice about Robodebt; 

• Failed to respond to public criticism and whistleblower complaints; 

• Ignored legal issues raised publicly by the Australian Institute of Administrative Law; 

• Created a culture where “aggressive and abusive behaviour” by a deputy secretary went unaddressed; and, 

• Caused the resumption of income averaging when she knew that method to raise debts was potentially inaccurate. 

The Albanese government couldn’t keep her in her departmental job after the Royal Commission report, so they made her a special adviser to AUKUS on just under $900,000. That was so sus that they had to stop it, not because they wanted to, but because the sus was seeping. But it was like manna from heaven while it continued.

Does it have to be this way?

The rationale for these “aren’t I undeservedly lucky?” benefits is that an accused person should be assumed to be innocent until there is a factual finding against them. 

If all those accused of improper or unlawful action were paid to do nothing until the inquiry or litigation was finished then this approach might be explicable, even if sometimes difficult to justify.

But that’s not what happens. 

For those who choose to defend the allegations, the expected lot of an employed accused is to lose their job and have no income while they wait for the slow processes to grind on. Those who are self-employed also have their lives (and that of their dependents) upended because of the delays in police, prosecution and court processes.

Assume that around 90 per cent of criminal charges lead to pleas of guilty. Of the 10 per cent that plead not guilty, the odds of a not guilty verdict or a guilty verdict are around 50/50. (Across different crimes there are different ratios of “guilty” and “not guilty”, but the differences do not affect this article.)

Those who achieve a “not guilty”, and who have been lucky enough to keep their job, or be suspended with pay, can hold their heads high.

But it doesn’t follow that those found to have misbehaved (be that corruption or a finding of guilt) should keep the money for doing nothing for all the time that a court system or an Inquiry takes to determine the facts against them.

The finding of guilt or corruption justifies the earlier decision to suspend employment. It also justifies a demand that all monies – less an amount equal to “eligible unemployment benefit” – paid during the suspension be repaid.

Letting the offender keep the money paid “to do nothing” shows, contrary to common sense, that crime and corrupt conduct do pay, sometimes handsomely.

Getting the ‘undeserved salary’ repaid

There is some legislation that shows that there can be a better way. The principles need to be broadened and to be implemented not only by the Commonwealth, but also by the states and territories.

The Commonwealth Crimes (Superannuation Benefits) Act 1989 requires the taking back of all employer contributions to superannuation from Australian Government employees (other than AFP employees who are dealt with in another law) who have been convicted of a corruption offence and sentenced to more than 12 months imprisonment.

Senator Ray in a short second reading speech explained that the legislation was in response to the Fitzgerald Inquiry findings in Queensland, and it would apply even to judges and parliamentarians.

The rationale was: “This government is determined to ensure that corruption does not infiltrate the Commonwealth or its instrumentalities and this bill will provide a strong financial disincentive to any who may be tempted to engage in corruption now or in the future”.

Unfortunately, this law has several defects, so much so that it should be repealed. 

The taking back of the employer contributions requires a court order. But the forfeiture application is not part of the sentencing process. This means that a sentencing judge may not be the judge who deals with the forfeiture application. Indeed, the sentencing judge may have no knowledge that such an application will later be made. 

Further, once the facts of the conviction and sentence are proved, the judge hearing the forfeiture application has no discretion: they must make the order that forfeits the entirety of the employer contribution. For a “late career, near-retirement” offender this can be crushing. For an “early career” offender it is much less punitive.

As a “collateral” penalty this forfeiture can be quite unfair for another reason, too: suppose the corruption of the young offender is much more serious than that of a near-retirement offender.

Hence, the present approach makes the application process and its “we take the lot” result an “abuse of process”. The judge hearing the application should be able to consider all relevant factors, including all the factors that were raised during the sentencing.

The claim that the law will “provide a strong financial disincentive” rings hollow: there is no publicity about this provision and no evidence that people planning corrupt acts have “considered the possibility of losing the employer super contributions”.

However, more usefully, the Act also allows for the Commonwealth to seek court orders (known as freezing orders) that prevent dealings with an accused employee’s property from the time that the employee is charged with a corruption offence.

A corruption offence is one that:

• involved an abuse by the person of his or her office;

• was committed for a purpose that involved corruption;

• was committed for the purpose of perverting, or attempting to pervert the course of justice.

Rather than the present provisions there should be legislation Australia wide that enables an employer (public and private) to first obtain a freezing order over a past or present employee’s assets, and second, to take back from an employee found guilty of an offence punishable by imprisonment, or to have been corrupt, any salary payments made after the criminal offence or the first act of corrupt conduct. This may entail a claim that goes further back than the first “suspended on pay” payment or date of termination for misconduct.

Accused know if they have done wrong. “Misconduct” is a ground to terminate employment. There is no reason to allow mere luck to dictate when salary payments can be clawed back. It follows that whether the employee is suspended on pay, or continues to be employed, the repayment of salary should be claimable.

Any shortfall in the repayments (for example, because the offender has spent the salary payments and their assets are insufficient) should be made good from the employer contributions to the dishonoured employee’s superannuation, but if and only if a judicial officer, having considered all relevant factors, is persuaded that such an order is appropriate.

That is, recovery of employer contributions to superannuation is a fall back, applicable only to recovery of salary, and subject to judicial determination.

Is this unfair? As taxpayers we are free to choose our charities. My giving list doesn’t extend to those who could, and should, have pleaded guilty but preferred to play the wheel of fortune using chips for which we paid. That’s too sus.

Hugh Selby, a former barrister, is the CityNews legal affairs commentator. His free podcasts on “Witness Essentials” and “Advocacy in court: preparation and performance” can be heard on the best known podcast sites.