Friday, April 22, 2011

A Super Situation

The Daily Telegraph revealed on Wednesday that new Liberal MP for Rockdale John Flowers may have to resign.

The story (incorrectly) stated that Mr Flowers "was elected while receiving a disability pension, in breach of the constitution." In fact, the section 13B of the NSW Constitution Act reads as follows:

(1) A person:
(a) holding an office of profit under the Crown, or
(b) having a pension from the Crown during pleasure or for a term of years,

shall not, if he is elected as a Member of either House of Parliament, be capable of sitting and voting as a Member of the House to which he is elected, and his seat as a Member shall become vacant, after the expiration of the period commencing with his election and ending on the expiration of 7 sitting days of that House after notice of his holding that office or having that pension has been given to that House in accordance with its Standing Rules and Orders, unless that House has previously passed a resolution indicating that it is satisfied that that person has ceased to hold that office or, as the case may be, that the right of that person to that pension has ceased or is suspended while he is a Member of that House.

So, you can be elected if you are in receipt of a pension.  However, upon being elected, if you do not give notice to the house that you are no longer in receipt of the pension before 7 sitting days have passed, your seat becomes vacant.

John Flowers is not in trouble yet.  But he will be soon.

The difficulty is this: he can't do the obvious thing and just give up the pension.

Mr Flowers is in receipt of a disability pension that he gained "when he was a teacher in 1997".

I'm not quite clear on what the disability was, or how it is that the disability prevents him from teaching but does not prevent him acting as a Rockdale councillor and mayor, or for that matter campaigning and being elected as a member of the Lower House, but there may well be a reasonable explanation.

I'm no superannuation expert, but I think that the relevant part of the Superannuation Act 1916 is section 52E.  It seems to suggest (at subsection (4)(b)), that a person can have the pension awarded for life. Presumably, this is the situation John Flowers is in.

The relevant provision contained in that section regarding removal of the pension is under subsection (6) which indicates that, if the SAS Trustee Corporation is of the view that the person has ceased to be "physically or mentally incapable of performing the duties of any employment that… would be reasonable for the person to undertake," then the pension should cease.

What has apparently happened is that Flowers has sought permission from the State Superannuation Board to have his pension frozen.

Exactly what power they may have to do this is not something I know anything about, but I suppose they can do these things.

Now, the Government has an advice on this from Crown Solicitors, no doubt written by someone who knows far more about all this stuff than me.  

But, to me, surely the obvious solution is for Flowers to point out to the SAS Trustee Corporation that he is no longer "physically or mentally incapable of performing the duties of any employment that… would be reasonable for the person to undertake."

The difficulty may be that this may mean that he loses this pension for life - and it would seem that he is likely to struggle to hold this seat in 4 years, and would therefore be loathe to risk being left with no income 4 years from now.

The surprising thing is that, as Luke Foley put it, "It beggars belief the Liberal Party would not have known about Mr Flowers' circumstances." So why was nothing done about it until now?

Surely a plan would not have been too much to ask for?  The whole thing could have been hosed down by someone from the Coalition being able to say "It's OK!  We have it under control!"

Instead we have the Daily Telegraph running with the byline "The O'Farrell Government is hoping that a State Superannuation Board ruling next week will avoid a by-election just one month into its term," which is an entirely fair assessment.

This must have come up when he was vetted.  If this becomes a "thing" - the Coalition has no one to blame for it but themselves.


  1. For a second there, I was like "How do you know all this legal business?" And then it slowly dawned on me. Some epic legal hurdles here that could all so easily be jumped if the Liberal Party was on the ball about this sort of thing.

    Admittedly, when you vet your Coalition candidates, disability pension probably doesn't rate as highly on the notable scale as 'philanderer', 'child porn addict', 'homosexual' or 'voted Kevin 07'.