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Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport v Nuttall

 

[2017] QSC 137

 

SUPREME COURT OF QUEENSLAND

 

CITATION:

Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport v Nuttall [2017] QSC 137

PARTIES:

TREASURER, MINISTER FOR ABORIGINAL AND TORRES STRAIT ISLANDER PARTNERSHIPS AND MINISTER FOR SPORT

(applicant)

v

GORDON RICHARD NUTTALL

(respondent)

FILE NO/S:

BS No 7086 of 2016

DIVISION:

Trial Division

PROCEEDING:

Originating Application

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

28 June 2017

DELIVERED AT:

Brisbane

HEARING DATE:

8 February 2017

JUDGE:

Douglas J

ORDER:

The respondent is to pay to the applicant on behalf of the Crown 25% of the publicly funded component of the commutation value of the respondent’s primary pension.

CATCHWORDS:

SUPERANNUATION – BENEFITS – MATTERS AFFECTING ENTITLEMENT TO AND PAYMENT OF – MISCONDUCT, ETC – where respondent was a member of the Legislative Assembly and a Minister of the Crown – where the respondent was found guilty of misconduct while in office – where respondent’s criminal conduct empowered court to direct respondent to pay applicant on behalf of the Crown a ‘just and equitable’ sum of his publicly funded superannuation – where no rigid formula determining what was ‘just and equitable’ but sum determined by reference to a variety of factors – where respondent had long period of service as elected member prior to committing the offences and had repaid the illegally obtained monies – where respondent’s conduct was serious and committed whilst he was a Minister – whether hardship of order upon respondent from punishment for his crime a relevant factor

Civil Proceedings Act 2011, ss 4, 59

Crime (Superannuation Benefits) Act 1989

Criminal Proceeds Confiscation Act 2002

Limitation of Actions Act 1974 s 10

Public Officers Superannuation Benefits Recovery Act 1988, ss 7, 8

DPP (Cth) v Della-vedova [2010] NSWSC 8, cited

R v Nuttall [2011] QCA 120, cited

Re Lane (Unreported, Supreme Court of Queensland, Ryan J, 9 October 1992), applied

Re Lewis [1995] QSC 73, considered

Talga Ltd v MBC International Ltd (1976) 133 CLR 622, cited

Theophanous v Commonwealth (2006) 225 CLR 101, cited

COUNSEL:

M D Hinson QC for the applicant

The respondent appeared on his own behalf

SOLICITORS:

G R Cooper, Crown Solicitor for the applicant

The respondent appeared on his own behalf

Background

  1. Mr Nuttall is a former minister of the Queensland State Government who, as a member of the Legislative Assembly from September 1992 until 8 September 2006, became entitled to be paid superannuation from the State’s common fund.  He was also a minister from 22 February 2001 until 7 December 2005. 
  2. On 16 December 2010 he was convicted of five offences of official corruption committed while he was a Member of Parliament and a minister between 10 December 2001 and 29 July 2005.  They were prescribed offences for the purposes of the Public Officers Superannuation Benefits Recovery Act 1988.  That legislation created a liability in him as a publicly funded superannuant to pay to the State an amount he is ordered to pay pursuant to s 7(2) of the Act.  That subsection provides:

7 Assessment of liability

  1.  If the judge hearing the application is satisfied that—
  1.  the person convicted of the offence or offences to which the application relates is a publicly funded superannuant; and
  1.  the application relates to 1 or more prescribed offences; and
  1.  the liability incurred under section 6(1) by the person upon conviction of that prescribed offence or those prescribed offences subsists;

the judge shall order the person to pay to the Treasurer on behalf of the Crown a sum, considered by the judge to be just and equitable, assessed by the judge in accordance with section 8.”

  1. Section 8 then sets out factors relevant to the assessment of liability:

8 Factors relevant to assessment of liability

  1.  In assessing the quantum of liability incurred by a convicted person under section 6(1)—
  1.  the quantum of liability shall not exceed the difference between—
  1.  the commutation value of the whole of the convicted person’s superannuation or retirement benefits at the time of the person’s retirement or cessation of employment (assessed in accordance with the appropriate provisions of the relevant superannuation scheme or, if the relevant superannuation scheme does not include such appropriate provisions, in accordance with actuarial principles), being the benefits that have accrued in respect of the period of the convicted person’s employment in which the person was engaged when the person committed the prescribed offence or offences of which the person has been convicted, together with interest thereon for the prescribed period; and
  1.  the amount of contributions paid by the convicted person to the relevant superannuation scheme constituted as required by subsection (2), being the contributions that have been paid in respect of the period of the convicted person’s employment in which the person was engaged when the person committed the prescribed offence or offences of which the person has been convicted;
  1.  without limiting the matters that a judge may consider relevant to such assessment of liability, a judge may have regard to the following matters and to such evidence as is before the judge concerning those matters—
  1.  the proportion borne by the length of the convicted person’s service in public office before the person first committed an offence by reference to which the person has incurred the liability to the length of the person’s total service in public office;
  1.  the nature of the offence or offences upon conviction of which the convicted person has incurred the liability and the degree of corruption evidenced by that offence or those offences;
  1.  the value of the gain to any person from the offence or offences upon conviction of which the convicted person has incurred the liability;
  1.  the degree of hardship likely to be occasioned by the convicted person’s complying with an order made under section 7(2) to the convicted person’s spouse or dependant (if any) who satisfies the judge that she or he was not aware of the conduct that has resulted in the convicted person’s incurring the liability.
  1.  The amount of contributions mentioned in subsection (1)(a) includes—
  1.  if the superannuation scheme to which the contributions were paid provides for the payment of interest on a refund of contributions—the interest accumulated on the convicted person’s contributions to the day of the convicted person’s retirement or cessation of employment; or
  1.  subject to paragraph (c), if the superannuation scheme to which the contributions have been paid provides for payment of an amount that exceeds the amount of the contributions if a person ceases to be a contributor (other than because of death) and is not entitled to a pension or other superannuation benefit under the scheme—the amount of the excess; or
  1.  if the contributions have been paid to the superannuation scheme under the Superannuation (State Public Sector) Act 1990 in relation to a transferring member within the meaning of section 32A of that Act—an amount that is 11/6 times the amount of the contributions.
  1.  The amount of contributions mentioned in subsection (1)(a) also includes interest for the prescribed period on—
  1.  the amount; and
  1.  the interest or excess mentioned in subsection (2)(a) or (b); and
  1.  the amount first mentioned in subsection (2)(c).
  1.  In this section—

contributions include deductions made from salary in respect of the convicted person for the purposes of a superannuation scheme.

hardship includes—

  1.  hardship to the spouse or dependant of the convicted person during the convicted person’s lifetime; and
  1.  hardship to the spouse or dependant of the convicted person consisting in the loss of entitlement to superannuation or retirement benefits to which the spouse or dependant would have been entitled on the convicted person’s death if the convicted person had not been convicted of a prescribed offence.

prescribed period means the period starting on the day after the day of the convicted person’s retirement or cessation of employment and ending on the day the order is made under section 7(2).”

  1. There was no issue between the parties about the following matters that were set out in Mr Hinson QC’s submissions:

“13. From 9 September 2006 the respondent received a pension out of the Fund pursuant to s.17 of the Parliamentary Contributory Superannuation Act 1970 (‘PCS Act’).  That pension is a ‘superannuation or retirement benefit’ as defined by s.4(1) of the Act.

14. The respondent paid contributions to the Fund at the rate of 11.5% of each instalment of his salary paid to him as a member of the Legislative Assembly pursuant to s.15 of the PCS Act.  Contributions are also paid into the Fund out of the consolidated fund under s.16 of the PCS Act.

15. In 2007 the PCS Act was repealed by s.32L of the Superannuation (State Public Sector) Amendment Act 2007 (the 2007 Act).  The 2007 Act inserted a new Part 5A into the Superannuation (State Public Sector) Act 1990 (the 1990 Act) which discontinued the Fund, transferred the amount held in the Fund into the State Public Sector Superannuation Fund, and transferred members of the Fund to become members of the State Public Sector Superannuation Scheme (the Scheme).

16. The Scheme is established by the Superannuation (State Public Sector) Deed 1990.  The Deed was also amended in 2007 as required by s.32K of the 2007 Act by inserting a new Chapter 9 headed ‘Parliament 70 Category’.  By s.32B of the 2007 Act and s.332(2) of the Deed transferring members under Part 5A of the 2007 Act became members of the Scheme in the Parliament 70 category.  Section 340 of the Deed is in materially identical terms to s.17 of the PCS Act in defining the amount of pension payable to a person who ceases to be a member of the Legislative Assembly.  Contributions are paid into the Scheme out of the consolidated fund under s.27H of the Deed and s.29 of the 1990 Act.”

  1. Mr Nuttall, who represented himself, conceded that there was a liability in him to pay a sum to the Treasurer and made submissions directed to the period which was relevant to the repayment that should be made and the “structural factors of hardship” which I should take into account in assessing the sum considered to be just and equitable in accordance with s 8.

Quantum of liability

Submissions for the applicant

  1. The submissions for the Treasurer were that s 8(1)(a) prescribes a maximum amount expressed as the difference between the commutation value of the respondent’s superannuation or retirement benefits at the time he ceased employment on 8 September 2006, together with interest, and the amount of contributions paid by the respondent to the relevant superannuation scheme.  Section 4(5) explains the commutation value and s 8(2) to s 8(4) explain how contributions are calculated.
  2. Section 8(1)(b) contains a non-exhaustive list of matters to which I may have regard in assessing a sum considered to be just and equitable. 
  3. The commutation value of the respondent’s superannuation or retirement benefits at 8 September 2006 was certified by the Under Treasurer to be $1,528,077.00.  That certificate is evidence of that value and there was no contrary evidence.  Accordingly, it is conclusive evidence; see s 23(2) of the Act.
  4. Section 8(1)(a) requires interest for the prescribed period, starting on 9 September 2006 and ending on the day the order is made under s 7(2), to be calculated on the commutation value.  “Interest” is defined by s 4(1) as meaning interest at the rate for the time being prescribed under s 59(3) of the Civil Proceedings Act 2011 calculated at a compound rate.
  5. The amount of the commutation value together with interest calculated to the day of the hearing, 9 February 2017, was $3,889,442 which includes the commutation value of the reversionary pension of $1,341,105 and the commutation value of the respondent’s primary pension of $2,548,337.
  6. The respondent’s own contributions have been certified as $183,773.42.  Those contributions are required to be increased in accordance with s 8(2) and s 8(3) which the Under Treasurer has certified as amounting to $1,013,484 as the amount of contributions including interest calculated to 9 February 2017.
  7. That means that the publicly funded component of the commutation value of the respondent’s primary pension is $1,534,853.
  8. Mr Hinson submitted that, on those figures, the maximum liability in Mr Nuttall under s 8(1)(a) was $2,875,958 but also submitted that the more appropriate figure would be $1,534,853 as the larger figure took into account a widow’s rights on Mr Nuttall’s retirement.  They are now irrelevant as Mr Nuttall and his wife were divorced some time ago.
  9. Mr Hinson’s submissions then turned to the list of relevant considerations in s 8(1)(b) which require me to assess the amount I consider to be just and equitable in conjunction with s 7(2).  He submitted that those words “just and equitable” connoted a wide discretion, exercisable by reference to the stated matters in s 8(1)(b) and such other matters a judge may consider relevant, being matters having some rational connection with the policy of the Act.[1]  He also drew my attention to a decision of the High Court on the corresponding Commonwealth legislation, the Crime (Superannuation Benefits) Act 1989 (Cth) discussed in Theophanous v Commonwealth:[2]

“62. The operation of Pt 2 of the CSB Act in respect of the benefits and interests of the plaintiff and his wife, vested or contingent, manifests one of the adverse consequences of his conviction for corruption offences. The corruption offences in question were committed whilst the plaintiff was a member of the House of Representatives. They involved abuse of that position and were committed for a corrupt purpose.

63. The provision of benefits to legislators, whether by salary, allowance or retirement benefit, has long been regarded as made to lessen the risk of and temptation to corruption and abuse of office. Legislation such as Pt 2 of the CSB Act, in its application to the situation of the plaintiff, vindicates the public interest in denying to those who succumbed to that temptation the benefits provided to encourage probity in legislators.

68. The question then becomes whether, in its application to the plaintiff (and thus to his wife), Pt 2 of the CSB Act is reasonably incidental to the exercise of another head of legislative power. Reference has been made earlier in these reasons to the support for the Superannuation Act provided by ss 48 and 51 (xxxvi) of the Constitution. The enjoyment of benefits provided thereunder by reason of membership of the House of Representatives or the Senate may be brought to an end as a further operation of the legislative power which supported their creation. Particularly is this so where the occasion for that determination, convictions for corruption and abuse of power while a member, is expressive of the same public interest in the avoidance of such delinquent exercise of the authority of high public office as sustained the law for the initial provision of those benefits.”

  1. His submissions continued to the effect that the terms of s 8(1) and the long title of the Act reveal a policy to deny superannuation benefits funded from the consolidated fund to the extent considered just and equitable.  As Harrison J said in DPP (Cth) v Della-vedova[3] which was a decision under the Commonwealth Act, the respondent ought not be permitted to hold out one hand to receive his employer’s contribution to his superannuation fund whilst simultaneously committing a fraud upon that employer with the other hand.
  2. Section 8(1)(b)(i) makes relevant the proportion borne by the length of the respondent’s service in public office before he first committed an offence, by reference to which he has incurred the liability under s 6, to the length of his total service in public office.
  3. He held office as a member of the Legislative Assembly for 14 years.  The first relevant offence was committed in December 2001, nine years and three months after he commenced to hold that office.  As Mr Hinson pointed out, Mr Nuttall had thus served 111 months of his total service of 168 months or 66% of it before the first relevant offence was committed.
  4. Section 8(1)(b)(ii) makes relevant the nature of the offence or offences upon conviction for which the respondent has incurred the liability and the degree of corruption evidenced by the offences.  Mr Hinson relied upon the decision of the Court of Appeal in R v Nuttall[4] as evidencing the nature of the offences of which he was convicted.  That was an Attorney-General’s appeal against the inadequacy of the sentence of five years’ imprisonment imposed for each of the five offences of official corruption.  The court increased the sentences to seven years’ imprisonment.
  5. Two of them, committed in December 2001, involved the corrupt receipt of $17,000 on account of the respondent having, in the discharge of his duties of office as Minister for Industrial Relations, influenced business dealings undertaken by the Department of Industrial Relations.  Those offences concerned a training scheme which Mr Nuttall promoted to his department over the resistance of senior departmental officers. 
  6. The other three offences committed in December 2004 and between March and July 2005 involved the corrupt receipt of $130,000 on account of Mr Nuttall having, in the discharge of his duties of office as Minister for Health, influenced business dealings undertaken by the Department of Health.  Those offences concerned a project for the treatment of waste water generated by hospitals, a project promoted by Mr Nuttall over the resistance of department officers. 
  7. The following points were made by the Court of Appeal in increasing the sentences.  The court:
  1. noted that the sentencing judge said that the true criminality lay in the respondent’s determination to use his position of ministerial authority to achieve personal financial gain from the projects;
  2. said that the respondent’s offending was made possible by the high office he held and was carried out in abuse of the office;
  3. said that the respondent abused his position as Minister of the Crown, an office at the pinnacle of the structure of government, a matter of particular gravity and potential for harm to the body politic reflected in the maximum penalty for official corruption by a Minister being double the maximum penalty for the holder of any other public office or employee in the public service;
  4. said that both schemes were promoted by the respondent against departmental advice in circumstances in which the respondent was not merely acting unlawfully but also in a position in which his own personal interests were in stark conflict with his duty as a Minister;
  5. said that the respondent’s offending commenced almost as soon as he took office as a Minister, was taking place when he ceased to be a Minister and was thus protracted, with the Shand and Talbot series of offences committed in the gap;
  6. said that the gravity of the offending conduct, its duration and frequency, and the intervening Talbot and Shand offending made the respondent's previous good character a matter of little weight;
  7. said that the respondent's offending was not in the worst category for which the 14 year penalty was provided because, for example, the two schemes did not corrupt, or involve a conspiracy with, public servants or other politicians.
  1. The references to the Shand and Talbot offences were to 36 offences of corruptly receiving a secret commission between April 2002 and September 2005.  Mr Nuttall was convicted of those offences in July 2009 and sentenced to seven years’ imprisonment for each offence.  Those offences were not the subject of this application.  I gather that an application in respect of them was not brought within the six year period prescribed by s 10(1)(d) of the Limitation of Actions Act 1974.  They were discussed in another decision of the Court of Appeal related to the appeal against conviction by Mr Nuttall.[5]
  2. Section 8(1)(b)(iii) makes relevant the value of any gain to any person from the offences giving rise to the liability under s 6.  Mr Nuttall received $147,000.  He repaid that sum in late 2011 pursuant to an order dated 28 March 2011 made under the Criminal Proceeds Confiscation Act 2002.  As was pointed out by Mr Hinson, it remains relevant that Mr Nuttall had the use of those corrupt payments until they were repaid.  The $130,000 paid in respect of the waste water scheme was paid to him between October 2005 and April 2006. 
  3. Mr Hinson also drew my attention to two previous decisions of this Court, Re Lane[6] and Re Lewis.[7]  In Lane, an order was made for payment of $25,000 where the maximum amount under s 8(1) was $834,657.89.  The gain from the offences was $5,030.92 which had been repaid.  The offences involved misuse of a ministerial credit card. 
  4. In Lewis, the former Commissioner of Police was ordered to pay the maximum amount calculated under s 8(1).  In his case, that figure was $1.43 million.  The offending occurred over a 10 year period and involved personal gain of about $580,000 which had not been repaid.  Almost all of the superannuation benefits at retirement ($862,382) consisted of publicly funded contributions ($807,756).  The offending was considered to be of the worst kind involving very serious corruption.  He used his position to facilitate police officers deliberately breaching their obligations to administer the law properly and honestly in a manner designed to combat criminal activity.  He did that in return for a share of the money paid by criminals as bribes to permit them to continue the pursuit of their criminal activities without police investigation or interference.  He also ensured that corrupt policemen were appointed to positions of authority and influence in the police force which would facilitate the deliberate non-performance of the duties of police officers with respect to people paying bribes.  As Ambrose J said:[8]  “It would be hard to contemplate more serious corruption in a Commissioner of Police”. 
  5. His Honour also proceeded on the basis that the $580,000 paid to the respondent was probably significantly less than half of the total of corrupt payments made for the benefit of corrupt members of the police force under the scheme of systematic corruption over which Mr Lewis presided.  Had the Crown sought to recover the bribes paid, the amount recoverable, on his Honour’s calculations, including interest, was nearly $1.3 million.
  6. Lane’s offending was clearly far less serious than Lewis’s and Mr Nuttall’s but some of the observations of Ryan J are useful in assisting with the approach I should adopt.  He rejected a submission that, as a general rule, once a person holding public office commits a prescribed offence, then he should not receive the proportion of the publicly funded superannuation benefit referrable to the period after the first prescribed offences committed.  He regarded the period described in s 8(1)(b)(i) as one relevant factor in making the assessment of what was just and equitable.  He believed, however, that it would be wrong to transform it into a prima facie formula for determining the relevant sum. 
  7. The nature of the corruption is of course significant.  Ryan J was unable to accept that the offences of which Mr Lane was convicted were particularly bad examples of corruption and accepted evidence that he was regarded by others as a hard working minister.  He too had repaid the money the subject of the convictions but also repaid other money relating to additional charges some of which did not proceed.  Therefore, he gave recognition to the fact that some money was voluntarily repaid. 
  8. It was relevant to this application that he rejected an approach that it was appropriate to have regard to evidence of the impact of the criminal proceedings taken against the respondent, including the financial hardships which ensued to him as a result of his conviction and sentence.  His Honour regarded that as irrelevant in determining the liability of the respondent to pay to the Crown a sum as a consequence of his conviction of a prescribed offence committed while he held a public office. 
  9. His Honour believed that a major concern in determining what sum was just and equitable was to ensure a degree of proportionality between the amount ordered to be paid and the criminality of the conduct of the holder of the public office.  He said it was impossible to make an assessment based on a mathematical formula and bore in mind that, although Mr Lane had made a refund, he had the benefit of the amounts he misappropriated for several years.
  10. Mr Hinson submitted orally that Mr Nuttall’s conduct related to the Shand and Talbot offences was relevant in considering the overall level of good conduct as it would be wrong to conclude that Mr Nuttall was not offending during the periods not referred to in his indictments.  He submitted, however, that I could not take that period into account fully because to do so would be to indirectly take money from the superannuation contributions in respect of offences that were statute-barred.
  11. Mr Hinson also pointed out that there was no suggestion in this case that Mr Nuttall’s conduct had corrupted other people as was the case with Lewis.  He submitted also that Mr Nuttall’s conduct was far more serious than that of Mr Lane.  Another distinguishing feature between Mr Nuttall’s case and Lewis’s was that the amounts received had been recovered, but an aggravating feature was that this involved a minister of the Crown, although Mr Nuttall’s overall conduct could not be said to be anywhere near as serious as Mr Lewis’s.  He submitted that the decisions in Lane and Lewis represented very different ends of the spectrum and did not provide any direct assistance to me in making the necessary evaluative judgment called for. 
  12. He did submit that one third of the relevant amount might be seen to be a ceiling or an absolute maximum on a just and equitable basis having regard to the relevant factors in s 8 and to the fact that he had repaid the relevant sums.  Accordingly, Mr Hinson submitted that a figure of somewhere between a quarter and a third of the amount of $1,534,853 representing the publicly funded component of the commutation value of Mr Nuttall’s primary pension should be ordered to be paid to the Treasurer on behalf of the Crown.

Submissions by Mr Nuttall

  1. Where the applicant submitted that the relevant period to consider over which the offences occurred was between 10 December 2001 and 29 July 2005, namely 44 months, Mr Nuttall submitted that the periods charged in the indictment related to December 2001, December 2004 and from March to July 2005 or a period of six months in total, or alternatively that his period of good behaviour was for nine years and three months between September 1992 and December 2001 and an additional 14 months from August 2005 to September 2006. 
  2. Otherwise he drew my attention to the sentencing comments of Judge O’Brien, as the Chief Judge was then, made on 16 December 2010 where his Honour referred to the programs put into place at Mr Nuttall’s insistence over the reasoned objections of senior public servants.  They were described by his Honour as ideas which came from the man who bribed Mr Nuttall.  His Honour said, however, that he was inclined to the view, having seen and heard all the witnesses in the case, that Mr Nuttall saw those projects as beneficial to the community and not mere sham schemes.  He then went on to point out that his true criminality lay in his determination to use his position of ministerial authority to achieve personal financial gain from those project.
  3. His Honour also distinguished the offending by Lewis as more serious than that by Mr Nuttall, referred to Mr Nuttall’s previous good character and the great deal of adverse publicity and public humiliation which the proceedings against him attracted.  He regarded that as providing a strong measure of punishment and went on to say that the stress on Mr Nuttall and his family has been considerable. 
  4. Mr Nuttall submitted to me that he had spent a lengthy period of detention in maximum security where his movements were more restricted than they might otherwise have been and where the conditions of his restraint were much more severe than would ordinarily be the case.  He was held in maximum security for a large part of his sentence despite being a model prisoner.  He was removed to a prison farm for the last 49 weeks of his confinement in custody. 
  5. He drew attention to other factors which, as I have said, I regard as irrelevant to this task, including the destruction of his career, reputation and marriage as well as the public humiliation he has suffered.  Those considerations are not relevant to the task before me, in accordance with the view expressed by Ryan J in Re Lane, a view which I share.  Hardship to a spouse or dependant unaware of the convicted person’s conduct is a relevant factor under s 8(1)(b)(iv) of the Act but not the hardship that Mr Nuttall suffered because of his punishment for the offences of which he was convicted. 
  6. Mr Nuttall also provided an affidavit which provided evidence that the Crown recovered $454,480.04 with costs in an amount of $42,000 from him under the Criminal Proceeds Confiscation Act 2002.  I have already referred to the recovery of the sum of $141,500 with costs of $5,000 under the same statute in addition.  He was also found guilty of contempt by the Legislative Assembly and fined $2,000 each on 41 counts of contempt totalling $82,000.  The total of those figures, including a further sum of $61,639.84 for the fees incurred by the Public Trustee in administering his estate while he was in custody, was $786,619.88.  He also incurred legal fees himself of something in the range of $400,000, lost both of his houses and was imprisoned for a significant period under stringent parole conditions. 
  7. Mr Nuttall also argued that unlike the situation in the cases of Lane and Lewis, there was no provision for confiscation orders at that time.  Mr Nuttall had significant confiscation orders made against him which he consented to and paid in full.  Mr Lane paid in full as well. 
  8. He submitted that I should offset any liability against payments already made by him and the hardship he has already incurred. 

Submissions in reply

  1. Mr Hinson submitted that the amount of money that had been paid by Mr Nuttall was irrelevant because it was paid in pursuance of the policy of other legislation such as the legislation relating to the confiscation of proceeds of crime which is concerned to deprive offenders of illegally obtained property.  The object of this Act was to adjust superannuation benefits to reflect conviction of prescribed offences.  He also pointed out that Mr Nuttall has received significant amounts by way of pension payments since his retirement.  He emphasised the importance of the fact that Mr Nuttall, when he offended, was a minister of the Crown as had been emphasised by the Court of Appeal decision on the appeal against his sentence by the Attorney-General.[9]
  2. He also pointed out that the fees paid to the Public Trustee were incurred simply as a consequence of the Public Trustee having the management of Mr Nuttall’s estate as a consequence of his convictions. 

Discussion

  1. Mr Nuttall’s submissions about the discrete periods relevant to the charges in the indictment are not particularly persuasive as a means of limiting the period I should take into account for the purposes of s 8(1)(b)(i).  The Act speaks of the proportion borne by the length of the convicted person’s service in public office before the person first committed an offence to the length of the person’s total service in public office.  That period here was one of about nine years and three months before any wrong doing compared to a total period in the Legislative Assembly of about 14 years.  The later period during which the offences charged were committed is not treated by the Act as only relevant in respect of the times the offences were committed.  Even if the Act did ring-fence the later period of offending so as to be relevant only during the dates the offences occurred, the existence of the Shand and Talbot offences should not be completely ignored.  They colour Mr Nuttall’s overall behaviour during the period he was a minister.
  2. It seems to me that the appropriate way to consider this issue is to take into account the fact that there is no evidence of offending by Mr Nuttall for that significant period of nine years and three months up until his first offence when compared to his 14 year career in parliament and in public office.  That equation is not, however, a prima facie formula for determining the relevant sum, but merely one factor amongst a number which I am required to take into account as Ryan J said in Re Lane.
  3. Another important feature of this case is that Mr Nuttall was a minister and was using that position to benefit himself to a significant degree.  The Court of Appeal’s attitude to his sentence appeal by the Attorney-General has been summarised by me earlier in these reasons.  It was serious offending which commenced almost as soon as he took office as a minister and was taking place when he ceased to be a minister.  In that context, his previous good character was described the Court of Appeal as a matter of little weight.  Nonetheless, his behaviour was not in the worst category.
  4. When I assess the proportionality between the gravity of the offending conduct and the extent to which Mr Nuttall is entitled to receive a publicly funded pension and consider what is just and equitable in making the decision to deprive him of a proportion of the public funded part of his pension as a consequence of his offending conduct, it seems to me that there are several significant issues that are relevant pursuant to s 8(1)(b) and the other considerations that may apply.  They include the following:
    1. the long period he served in Parliament before he began offending; 
    2. that his offending occurred during the time when he was a minister;
    3. that he took bribes of significant amounts thus creating great potential to erode public respect for and confidence in the institutions critical to the good order of government and society as the Court of Appeal pointed out in the passage to which I have referred; 
    4. the value of the gain to him of $147,000 was substantial, but I take into account that it has been repaid with interest but that he also had the use of the money for between five and six years; 
    5. that he repaid other sums to the Crown is something that may be relevant to some extent in showing a willingness in him to make recompense, but they are figures which the Crown was entitled to in any event. 
  5. As Mr Hinson submitted, it may be appropriate to think of the figure of one third of the publicly funded component of the commutation value of his primary pension as a ceiling, having regard to the period during which he served in Parliament without offending.  The seriousness of the offences was great but not as serious as Lewis’s conduct.  The value of the gain to Mr Nuttall from the offences was significant but has been recovered.  In those circumstances, using a broad-brush approach, it seems to me that one quarter of the publicly funded component of that sum is appropriate. 

Conclusion

  1. Accordingly, I shall order Mr Nuttall to pay to the Treasurer on behalf of the Crown 25% of the publicly funded component of the commutation value of Mr Nuttall’s primary pension.  As I said earlier, the figure said to represent that amount at the hearing was $1,534,853.  I have been told that it is now $1,577,682 including interest updated to today, 28 June 2017.

Footnotes

[1]  See Talga Ltd v MBC International Ltd (1976) 133 CLR 622, 634.

[2]  (2006) 225 CLR 101, 126-128.

[3]  [2010] NSWSC 8 at [38].

[4]  [2011] QCA 120.

[5]  See R v Nuttall [2010] QCA 64, exhibited to the affidavit of  Paula Freeleagus filed 12 July 2016; ex PPF-02.

[6]  No 936 of 1991; Ryan J, 9 October 1992, (unreported).

[7]  [1995] QSC 73.

[8]Re Lewis [1995] QSC 73 at pp 7-8.

[9] R v Nuttall; Ex parte Attorney-General [2011] QCA 120 at [52].

Close

Editorial Notes

  • Published Case Name:

    Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport v Nuttall

  • Shortened Case Name:

    Treasurer, Minister for Aboriginal and Torres Strait Islander Partnerships and Minister for Sport v Nuttall

  • MNC:

    [2017] QSC 137

  • Court:

    QSC

  • Judge(s):

    Douglas J

  • Date:

    28 Jun 2017

  • White Star Case:

    Yes

Litigation History

Event Citation or File Date Notes
Primary Judgment [2017] QSC 137 28 Jun 2017 -

Appeal Status

No Status