Policy guiding decision-making under the Crimes (Superannuation Benefits) Act 1989

Purpose of the policy

This policy provides guidance on the factors that the Attorney-General will take into account when deciding whether to authorise the Commonwealth Director of Public Prosecutions (CDPP) to apply to a court for a superannuation order against a Commonwealth employee under the Crimes (Superannuation Benefits) Act 1989 (CSB Act). It also outlines the process that the Attorney-General’s Department will follow to ensure that any potentially affected employee is afforded procedural fairness.

The CSB Act establishes a regime allowing employer-funded superannuation benefits to be recovered from Commonwealth employees who have been convicted of a corruption offence (or corruption offences) and sentenced to more than 12 months’ imprisonment.

Factors to be considered

To the extent that they are relevant to the facts and circumstances of a particular case, the matters that the Attorney-General will take into account when determining whether to authorise the CDPP to apply for a superannuation order are:

• the impact of the making of the order on the person, their family or dependents (both the financial hardship that may result as well as risks of aggravating physical or mental health conditions)
• the circumstances of the offence and whether any mitigating or aggravating factors are present
• the extent to which the conduct represents an aberration in an employee’s otherwise unblemished career
• whether the person’s conduct resulted in some unfair gain or advantage, or was engaged in for this purpose
• whether there is a reasonable prospect of recovering the employer-funded superannuation benefits from the employee
• whether there has been a delay between the employee’s conviction or convictions and the seeking of a superannuation order
• whether there has been a delay in bringing the criminal proceedings against the employee that resulted in the conviction that triggered the Attorney-General’s ability to authorise the CDPP to apply for a superannuation order.

This list is not exhaustive. The Attorney-General will consider and take into account all relevant matters with regard to the facts and circumstances of a case. Also, the Attorney-General will only take the specified matters into account to the extent that they are relevant to the facts and circumstances of a case.

Procedural fairness

The affected employee will be accorded procedural fairness (also known as natural justice) and be provided an opportunity to respond to any adverse matters that the Attorney-General may rely on when making a decision whether to authorise the CDPP to apply for a superannuation order.

The Attorney-General’s Department will follow the below process.

• The department will write to the affected employee to inform them that the Attorney-General will consider whether to authorise the CDPP to apply for a superannuation order against them, and to inform them of the adverse information that the Attorney-General may rely on when making a decision about the matter – adverse information can include the nature and circumstances of the offending, comments by the sentencing judge or appeal courts, as well as any other relevant information.
• The affected employee will have 21 days from the date of the department’s letter to provide a response. In their response, the affected employee may wish to make submissions on why the Attorney-General should not exercise their discretion to authorise the CDPP to apply for a superannuation. The affected employee may also wish to make submissions on how and in what way any of the matters outlined above are relevant to the exercise of the Attorney-General’s discretion to authorise the CDPP to apply for a superannuation order.
• The department will make a recommendation to the Attorney-General.
• The affected employee’s submissions will be provided to the Attorney-General in full.
• The Attorney-General will decide whether or not to authorise the CDPP to apply for a superannuation order.

Background information about the Crimes (Superannuation Benefits) Act 1989

How does the CSB Act work?

Under the CSB Act, courts can make superannuation orders that provide that future superannuation payments must cease and employer-funded superannuation benefits that have already been paid can be recovered.

Superannuation orders can only be made in relation to Commonwealth employees who have been convicted of one or more corruption offences and received a total sentence of more than 12 months’ imprisonment.

A superannuation order only covers employer-funded superannuation benefits. A superannuation order does not affect the payment of the employee's own contributions or any interest on those contributions that may have accrued under a superannuation scheme. Where an order is made, all of the employer-funded superannuation benefits will be forfeited.

What is a ‘corruption offence’?

The CSB Act defines a corruption offence as meaning an offence:

• whose commission involved an abuse of power by a person of his or her office as a Commonwealth employee
• that, having regard to the powers and duties of such an employee, was committed for a purpose that involved corruption, or
• that was committed for the purpose of perverting, or attempting to pervert, the course of justice.

The question of whether an offence is a ‘corruption offence’ for the purposes of the CSB Act will depend on the particular facts and circumstances of each case. In previous cases, offences that have been considered to be ‘corruption offences’ have involved an element of financial gain, such as fraud offences and theft offences. Other offences considered to be ‘corruption offences’ have involved the person using their position as a Commonwealth employee to commit criminal acts such as illegal drug importation and robbery. These examples are not exhaustive of the offences that could be considered ‘corruption offences’.

What is the process for obtaining a superannuation order?

Superannuation orders are made by a court, based on an application from the Commonwealth Director of Public Prosecutions (CDPP).

The CDPP can only apply to a court for a superannuation order if the Attorney-General has provided an authorisation. If the Attorney-General authorises the CDPP to apply for a superannuation order, the CDPP must apply to the court for the order – there is no discretion for the CDPP not to do so.

The Attorney-General’s decision as to whether to authorise the CDPP to apply for a superannuation order is discretionary. The Attorney-General may provide authorisation if the following criteria are met:

• the person is or was an employee within the meaning of the CSB Act
• the person is convicted of an offence
• the Attorney-General is of the opinion that the offence is a corruption offence, and
• the person received a sentence of imprisonment of more than 12 months for their corruption offence, or if the person was convicted of more than 1 corruption offence, they received a total sentence in respect of all their convictions that was more than 12 months’ imprisonment.

What can a court order as part of a superannuation order?

Provided the court is satisfied that the offence is a corruption offence, it must make the superannuation order. The court does not have the discretion to decide whether or not an order will be imposed, and it cannot impose a partial forfeiture or recovery order.

A superannuation order does not take effect until the appeal period has expired or until all appeal proceedings have been disposed of, whichever is the later.

Once a superannuation order takes effect:

• any Commonwealth funded employer component held in the superannuation fund, in respect of the affected employee, is forfeited to the Commonwealth
• the affected employee becomes liable to repay any Commonwealth funded employer component specified in the superannuation order
• the affected employee becomes entitled to a lump sum payment of their personal contributions and accrued interest held in the superannuation fund.

Can the affected employee seek review of the Attorney-General’s decision to authorise the CDPP to apply for a superannuation order?

Yes. The Administrative Decisions (Judicial Review) Act 1977 (ADJR Act) applies to the Attorney-General’s decision to authorise the CDPP to apply for a superannuation order. Accordingly, the affected employee can apply to a federal court for review of that decision.

Further information

The Commonwealth Parole Office can be contacted at: