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House of Assembly - Fifty-First Parliament, Third Session (51-3)
2009-11-17 Daily Xml
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Auditor-General's Report

AUDITOR-GENERAL'S REPORT

In committee (resumed on motion).

(Continued from page 4693.)

The ACTING CHAIR (Ms Breuer): We have consideration of the Auditor-General's Report in relation to the Attorney-General, Minister for Justice, Minister for Multicultural Affairs, Minister for Veterans' Affairs.

Ms CHAPMAN: Attorney, the first matter I wish to bring to your attention and ask questions about relates to page 20, Part A: Audit Overview. This relates to dot point 5, removable computer media, and in particular I refer to the last paragraph on that page outlining the concerns of the Auditor-General in respect of what he describes as an 'incident' and in particular the loss of the USB memory stick, which is an item relevant to the proposed development and building of the Royal Adelaide Hospital. The reason I will be asking questions about it specifically is that the Crown Solicitor's Office has been called into this matter. As you will remember from questions in parliament, various ministers have answered a number of questions on this matter.

To refresh your memory, this was an incident which occurred in June, so it is relevant to the year in question and about which the Auditor-General has made some comment. This arises out of a USB stick that was lost on 2 June 2009. A number of questions were raised after minister Hill made a ministerial statement on 17 June 2009. Minister Foley provided answers to the parliament advising that the matter had been referred to the Crown Solicitor's Office, amongst other parties. The Crown Solicitor's report has now been received. First, have you read that report?

The Hon. M.J. ATKINSON: The Crown Solicitor's Office looks after dozens upon dozens of government agencies, and if I were to read every advice that the Crown Solicitor's Office provided to government agencies, I would sleep not 24/7. I see no reason as Attorney-General to poke my nose into Crown Solicitor's legal advice to the Minister for Health.

Ms CHAPMAN: Do I assume that you have not read the report?

The Hon. M.J. ATKINSON: Yes, that's right.

Ms CHAPMAN: Have you made any inquiry as to what explanation there was for a nine day delay in the information being received by the Department of Treasury and Finance and the Department of Health and the advice to their respective ministers?

The Hon. M.J. ATKINSON: Could the member for Bragg substantiate the nine day delay and refer to that in the Auditor-General's Report?

Ms CHAPMAN: At the bottom of page 20 the Auditor-General refers to 'an incident that has received recent attention'. At the end of the paragraph he says:

Such an incident has the potential to weaken the integrity and competitive strength of the procurement process.

What we know from the information provided to the parliament to date, as confirmed by both the Minister for Health and the Treasurer, is that on 12 June 2009 they were informed about it. You might recall the Treasurer expressed some displeasure at the nine day delay when he answered a question on 17 June.

The Hon. M.J. ATKINSON: Nine day delay by whom?

Ms CHAPMAN: His department and the Department of Health advising both him and the Minister for Health of what happened. The USB stick was lost on 2 June and it was reported to both the Department of Health and the Department of Treasury and Finance on 3 June. He said at the time that he had referred the matter to the Crown Solicitor's Office to make some inquiry in relation to a number of matters raised in the Auditor-General's Report, including the procurement process and the effect on it; and I do not want to get into that because that is a matter for those ministers. As the shadow attorney-general I am asking you whether you have made any inquiry as to the nine day delay.

The Hon. M.J. ATKINSON: I do not really understand the member for Bragg. We are on the Auditor-General's Report as it concerns departments for which the Attorney-General has responsibility. As I understand it, the member for Bragg's question is: why was there a nine day delay in the Department of Health informing the Minister for Health and the Treasurer about the missing USB stick with data regarding the tendering for the new Royal Adelaide Hospital? I do not understand why the member for Bragg is asking me to comment on that since I am not the line minister for the Department of Health.

Ms CHAPMAN: The reason is that your budget within the Crown Solicitor's Office, for which you can charge either the Department of Health or the Department of Treasury and Finance or both, is responsible to meet the legal costs if they use the services of the Crown Solicitor's Office. Of course, they conducted the inquiry and provided advice to the government. We understood from questioning of the Treasurer that it was about the integrity of the process and the risk to the tender process—this is the biggest single contract ever in the history of the state. Also, the information from the Treasurer was that the inquiry was also to cover the question of why there was such a delay in his being told and the Minister for Health being told by their respective departments.

You have not read the report—and I understand that. My question to you is whether you as Attorney-General—and legal costs might be incurred in dealing with the matter, tidying it up or otherwise—have made any inquiry as to why there was a nine day delay?

The Hon. M.J. ATKINSON: No, I have not made any inquiry as Attorney-General because the nine day delay—which the member for Bragg claims; and she may well be right—in the Department of Health reporting the missing USB stick to the Minister for Health and the Treasurer is not within my portfolio, is not within my remit. The Department of Health is not responsible to me.

Ms CHAPMAN: I now refer to Part B: Agency Audit Reports, Volume I. The Attorney-General's Department commences at page 91, and includes the budget and explanatory notes for the areas specifically under the control the Attorney, some of which have other ministers who have direct control in relation to gambling and the like. I am referring to the fund for legal services, which is an area of principal responsibility of the Attorney-General. In fact, I think in this year's budget it takes up $38.8 million of the budget to cover the costs of the Crown Solicitor's Office, the DPP and parliamentary counsel in the provision of legal services to the state. They all have different roles and the like.

When I was reading this, I was interested to note that the Crown Solicitor's Office far exceeds by some $2 million the provision of funding to the DPP's office. In any event, it is the legal services expense to which I refer. My first question is: how much has been spent and/or charged to whichever department for the time of the Crown Solicitor's Office and/or Solicitor-General or funding for the High Court challenge on the River Murray agreement in the subject year?

The Hon. M.J. ATKINSON: The member is from private practice and she would be familiar with billing units. The closest we get to billing units in the Crown Solicitor's Office is a program called LawMaster. If LawMaster can tell us how much time the Solicitor-General and the Crown Solicitor's Office have used on the River Murray High Court challenge, we will obtain that information for the member for Bragg. However, it may be unobtainable, because LawMaster may not reveal that figure.

Ms CHAPMAN: To clarify this, how much have you charged either the Premier's office or the Minister for the River Murray's office for the High Court challenge in the subject year?

The Hon. M.J. ATKINSON: The answer is the same. It would depend on whether the advice is chargeable or non-chargeable. I think you will find that most of the Crown Solicitor's Office work is non-chargeable and, if it is non-chargeable, it will not necessarily be recorded.

I should add that I take the view that the Crown Solicitor's Office is there for a whole of government purpose to give good and accurate legal advice to the government of the day to ensure that the government of the day's policy objectives are carried out by lawful means and to ensure that the government does not act unlawfully and that agencies do not come into legal conflict with one another. In fact, my friend the late Lyndon Owen, who worked in the Crown Solicitor's Office, used to say, 'For government, the Crown is mum and Treasury is dad.'

The Rann government has a policy of ensuring that the waters of the River Murray are used by the states in accordance with scientific criteria rather than political criteria. We want a whole of Murray-Darling Basin system of allocating water. We want a fair allocation of water to South Australia for the critical human needs of South Australians and for irrigation purposes and for environmental flows into the back waters and lagoons, Lake Alexandrina, Lake Albert and the Coorong.

The only reason the Rann government would be going to the High Court is to secure that objective. It is a legitimate objective, and we do not resile from instructing the Crown Solicitor's Office and the Solicitor-General to advise the government on how that is best done by the legal means available to us.

Ms CHAPMAN: I will come back to that in a moment, but I take it then that you are taking on notice that, if there is a way of identifying that or you have sent a bill to either of these departments, that information will be provided. I understand from your answer that you say otherwise the Crown Solicitor's Office may have done work without actually billing the respective departments on that, because it is a matter on which you are advising cabinet.

The Hon. M.J. ATKINSON: Shall I answer that? I think the member for Bragg's summary is correct.

Ms CHAPMAN: The Premier has announced he will get advice on this and has told parliament he has had advice on this issue. Why then has the High Court challenge not been lodged?

The Hon. M.J. ATKINSON: The papers for the High Court challenges have not yet been lodged, because we have not yet settled our claims and our pleadings. When we have done that, the member for Bragg will be among the first to know.

Ms CHAPMAN: So, what budget has been allocated in this financial year to proceed with the drafting or completion of that material for lodgement in the High Court? When do you expect to be lodging it?

The Hon. M.J. ATKINSON: The Solicitor-General and Crown Solicitor's Office advising the government on the best means of obtaining South Australia's fair share of River Murray water is core business for the Solicitor-General and the Crown Solicitor's Office. It is what they do, so there is not a budget or a specific allocation: it is their routine work, as it would have been under a Liberal government.

Mr Williams: Never!

The Hon. M.J. ATKINSON: The member for MacKillop interjects 'Never!' because I think over dinner he has had too much lemonade and the gas has affected him.

Ms CHAPMAN: Whilst it may be disorderly for my colleague the member for MacKillop to interject, it is totally improper of the Attorney-General to impugn the motives of the interjector.

The Hon. M.J. Atkinson interjecting:

Ms CHAPMAN: I acknowledge that, and he should ignore them. The statement he has just made is quite a reflection on the member for MacKillop, and I ask the Attorney-General to apologise.

The ACTING CHAIR (Ms Breuer): Attorney-General, I really cannot see how it is an issue when someone is accused of drinking too much lemonade. However, it appears to be a matter of great issue here, so perhaps the Attorney-General would like to apologise.

The Hon. M.J. ATKINSON: Does the member for MacKillop require me to withdraw the suggestion that over the dinner break he enjoyed lemonade?

Mr WILLIAMS: I can firmly inform the house that I had no lemonade at all with my dinner. I had a glass of very fine Coonawarra red wine from the Majella Estate, one of the better wine producers in my electorate, but for the Attorney-General to intimate that I had too much and that that caused me to interject that he will never put the case before the High Court is a nonsense, and the Attorney-General knows that.

The ACTING CHAIR: Would the Attorney-General like to apologise for accusing the member for MacKillop for having too much lemonade in the tea break?

The Hon. M.J. ATKINSON: Madam Acting Chair, I withdraw the calumny that the member for MacKillop has had too much lemonade and that the gas has affected him, and I substitute that he has drunk fine South-East wine.

Ms CHAPMAN: What is the answer?

The Hon. M.J. ATKINSON: The answer is that it is our firm and certain intention to lodge legal proceedings to obtain South Australia's fair share of Murray water, and, when we are ready to do that, we will make an announcement.

Ms CHAPMAN: Do I understand the situation then that you have not quite finished the papers for lodgment? Is it anticipated then that this will be lodged before the end of the calendar year?

The Hon. M.J. ATKINSON: The word 'anticipation' implies, I think, that something terrible is going to happen. Let us use a neutral term, such as 'expectation'. I know not whether the papers will be lodged by Christmas. What I can say is that it is our firm intention to obtain South Australia's fair share of River Murray water by legal means. As the member for Bragg well knows, sometimes the threat of legal proceedings is more effective than the legal proceedings themselves. We will do everything to advance the interests of South Australians in River Murray water using the resources of the Solicitor-General and the Crown Solicitor's Office—for them it is core business.

Ms CHAPMAN: Do I take it then, Mr Attorney, that there is no cap on this? As you say, it is the core business of the Solicitor-General (he is to be available to carry out cases as you would instruct, including to the High Court), and the crown solicitors do not have any budget upon which they are restricted to proceed with this, and that otherwise it is ready to go. The reason I ask this is because we have heard repeatedly in the parliament about the desperate plight of not only the River Murray but, in particular, the Lower Lakes and the concern that the Minister for the River Murray has expressed about the lack of security, although she gave some comfort today that there was a hopeful expectation that water for human and critical needs would be there.

We have heard the contribution by the minister for the environment and his concern for the Lower Lakes—birds, slumping banks, etc. We have heard from the minister for agriculture and the former minister about the plight of the food producers. We have heard umpteen statements about the urban dwellers in Adelaide in particular who rely on the water supply and the restrictions that they have faced. All these things are pressing major state issues, so quite clearly there has been a continuous message from the government (and we would agree) that there is still a situation whereby the eastern states are obviously considering their interests ahead of South Australia and that we are the trickle at the end.

I cannot think of any other more pressing issue. You say there is no cap, no financial restriction. I just cannot understand. Perhaps you could explain to me, Attorney, why this is not a priority and why these pleadings are not ready to go and being lodged?

The Hon. M.J. ATKINSON: The member for Bragg has not had the good fortune ever to serve in a government. If she had served in a government she would know how the Solicitor-General and his support staff work. She would know how the Crown Solicitor's Office works. I note that she made very serious reflections of a pejorative nature on members of the Crown Solicitor's Office recently, in particular those in the Government Investigations Office. I must say that I thank the Crown Solicitor for alerting his staff to the reflections made on them by the member for Bragg, and they can make their own judgment about how fair that criticism was.

However, again, in my opinion (and it is my opinion only), if the member for Bragg had experience of government, she would not be asking these questions, because representing the government in court, indeed, in the High Court, is the core business of the Solicitor-General and the Crown Solicitor's Office. It is not for them to set a budget at the beginning of the year, because during the budget process they do not know what topics will be the subject of litigation or pre-litigation negotiations. They act on the instructions of the elected government. So it is not possible to say, 'This is the budget for the River Murray and when it runs out we won't do any more.' This is their core business. This is why these lawyers are on the payroll. It is what they expect to do when they come to the office in the morning.

Ms CHAPMAN: I have a point of order, Madam Chair.

The ACTING CHAIR (Ms Breuer): The member for Bragg.

Ms CHAPMAN: This might be very interesting but it is not the question I asked. The minister has explained that the Crown Solicitor's Office and the Solicitor-General, under their respective legislation, are there to carry out the business as instructed by the elected government, and that is true and I agree with it. My question is: why hasn't the elected government, with such a pressing issue for the state of South Australia, instructed them to get on with the High Court application and lodge it?

The Hon. M.J. ATKINSON: Madam Chair, that is to assume that, before the lodging of proceedings in the High Court against other states, the claim is fully formulated, and that is to assume that lodging is the best strategy. It may not be. The interests of the state of South Australia will be managed in the best interests of the state on the advice of our lawyers, and it may be that rushing into the High Court is not at this moment the best strategy. Moreover, there is a range of grounds on which proceedings may be issued. They may be issued under the constitution; they may be issued on the basis of common law riparian rights. They may be issued under specific legislation. When those matters are settled and when it is to the optimum advantage of the people of South Australia, proceedings will be instituted.

The member for Bragg, it seems to me, has not prepared a forensic examination of the Auditor-General's Report regarding the Attorney-General's Department and is merely trying to leverage off matters about which she has asked questions elsewhere.

Ms CHAPMAN: I have a point of order, Madam Acting Chair. Clearly, the Attorney-General is now reflecting on me, as the questioner, in relation to this and as to what work has been done on this matter. But his answer is pretty clear—they have done nothing, and they are clearly not going to.

My next question refers to page 226 of Volume I, about expenses of the Courts Administration Authority. Were any payments made during the 2008-09 year to the Western Australian government and/or Western Australian Supreme Court for Justice Kevin Martin in respect of Justice Martin being hired to hear the case in which you were involved, Mr Attorney, of Cannon v Atkinson?

The ACTING CHAIR: The Attorney. You have two minutes.

The Hon. M.J. ATKINSON: The members for Bragg and MacKillop just made an assertion that this state will not be issuing proceedings in the High Court.

Ms CHAPMAN: I have a point of order, Madam Acting Chair. I have been asking—

The ACTING CHAIR: What is your point of order?

Ms CHAPMAN: I have asked a question about what funds, if any, have been applied for the payment of a judge to come over in the defamation proceedings between Cannon and Atkinson. It is nothing to do with the High Court. If the member wants to give some personal explanation, he can do so under the rules; but in the meantime, I ask him to address the subject of the question.

The Hon. M.J. ATKINSON: The Courts Administration Authority, quite properly, made provisional arrangements for a judge from outside this jurisdiction to hear a dispute between a magistrate and me. I am not aware that any money was expended or paid in arranging for that judge to be on standby.

Ms Chapman: Will you take it on notice?

The Hon. M.J. ATKINSON: Well, the point is that Justice Martin never came to South Australia.

Ms CHAPMAN: Are you prepared to take it on notice?

The Hon. M.J. ATKINSON: Yes, I am prepared to take it on notice, but I suggest that either there was no cost incurred or that it is not a separate item in the Courts Administration Authority budget.

Progress reported; committee to sit again.

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