South Australian members of parliament and public servants currently charged with defrauding taxpayers will be eligible to have their legal fees paid by taxpayers, whether or not they are found guilty, under a little-understood change to the state’s anti-corruption laws passed unanimously by parliament.
Former Liberal MPs Troy Bell and Fraser Ellis are currently before the courts, charged over their use of the Country Members Accommodation Allowance (CMAA).
The scheme allowed regional MPs to be reimbursed for nights spent in Adelaide on official business.
Both are charged with deception offences for allegedly claiming tens of thousands of dollars they were allegedly not entitled to. Both MPs strenuously deny any wrongdoing.
Irrespective of the outcome in the court, they are eligible to claim all their legal costs back because offences — including deception, theft and dishonestly dealing with documents — no longer fall within the Independent Commission Against Corruption (ICAC) Act's definition of corruption.
Under the changes, everyone gets paid unless they’re convicted of a new, more narrowly defined corruption offence, which is limited to serious and systemic corruption matters.
Previously, any "material adverse finding" stemming from an ICAC probe would bar an MP, public servant or police officer from claiming any money.
Mr Bell and Mr Ellis did not respond to the ABC’s request for comment on the changes.
Already $2.3 million paid out
The ABC can exclusively reveal that, in the past four years, $2,343,078.43 in legal fees has been paid to 29 public servants involved in ICAC probes that did not result in a successful prosecution.
In a statement, the Attorney-General’s Department said that $64,426.28 was linked to investigations into the Country Members Accommodation Allowance.
The public officials who were reimbursed were not confirmed, nor were the specific cases in which they were involved.
Attorney-General Kyam Maher told ABC Breakfast he was seeking advice into the details of the legislation but said a majority of the legal fees paid out were to police officers who had charges withdrawn or acquitted following a failed ICAC inquiry into theft at crime scenes.
The public officials who were reimbursed were not confirmed, nor were the specific cases in which they were involved.
Several MPs — including senior Liberal Terry Stephens — were investigated over their use of the Country Members Accommodation Allowance. Mr Stephens strenuously denied any wrongdoing.
Mr Stephens was probed for two years by ICAC, before a brief of evidence was delivered to the Director of Public Prosecutions, who decided not to lay charges because they deemed there to be no reasonable prospect of conviction.
All MPs questioned over their use of the scheme are eligible for reimbursement, whether they’re found to be innocent, guilty or to have no case to answer.
Mr Stephens did not respond to the ABC’s request for comment.
'That's crazy'
Barrister and Centre for Public Integrity director Geoffrey Watson said he had never heard of such a generous repayment scheme for government officials at the public's expense.
"The public should be outraged by this development," Mr Watson said.
"In simple terms, a politician could be caught out in an act of corruption, defend it, be found guilty and be the subject of scathing observations by a magistrate and then recover his or her costs for having unsuccessfully defended the matter. That's crazy.
"It will operate retrospectively, with the potential of reimbursing politicians successfully prosecuted … which is just an extraordinary thing. I've never heard of such a thing."
Mr Watson said there was no disincentive for those involved in ICAC matters to not undertake every avenue of legal appeal, because taxpayers would foot the bill.
"There's no public accountability at all. We can't even get to the bottom of how much the lawyers are being paid, how much they charged, whether those charges were realistic or not. That's also going to be kept secret — brushed under the carpet," he added.
Commissioner concerned
In a report on the new ICAC Act, Commissioner Ann Vanstone noted that the new rule was one of only two made retrospective as part of the sweeping changes.
“I query how the public interest requires that public officers convicted for any criminal offence should be reimbursed for legal costs from public funds,” Ms Vanstone said in a report late last year.
"I apprehend that this provision might influence the conduct of criminal prosecutions, conceivably leading to the accused agreeing to plead guilty to certain non-corruption charges or the prosecution laying corruption charges because of the consequences in terms of the repayment of legal costs.
"I would argue this has potential to impact, not only upon my independence in determining what matters to investigate, but also on the independence of the Director of Public Prosecutions."
Major parties in lock-step
Premier Peter Malinauskas said he was "well-briefed" in opposition about the changes, but would not be drawn on them.
"I want to seek advice on that [issue of reimbursement] to understand exactly what those circumstances are," Mr Malinauskas said.
"The changes that were made in the previous parliament were ones that were supported unanimously."
Shadow Attorney-General Josh Teague said he would be keeping a close eye on how the new act was working but did not believe it needed urgent change.
"The legislation is what it is and it's set the threshold where it has, and I think we just need to see that working its way through,” Mr Teague said.
"If there’s demonstrated need for further reform, then I’ll be quick to bring that to attention."
