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House of Assembly - Fifty-Fourth Parliament, First Session (54-1)
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Auditor-General's Report

Auditor-General's Report

In committee.

The CHAIR: I declare the examination of the report of the Auditor-General 2017-18 open. I remind members that the committee is in normal session. Any questions have to be asked by members on their feet, and all questions must be directly referenced to the Auditor-General's 2017-18 report. I welcome the Attorney-General and also the member for Kaurna, and I call for questions. The member for Kaurna.

Mr PICTON: I refer to the Auditor-General's Report, Part B, Agency Statements, page 19, significant events and transfers, and in particular the transfer of the $146 million to SAicorp for the Victims of Crime Fund for the National Redress Scheme in 2017-18. I ask the Attorney-General: why was it necessary to allocate this against the 2017-18 budget?

The Hon. V.A. CHAPMAN: In short, the Keogh settlement, as is well known, arose from a redress—

Mr PICTON: I was not asking that: I am referring to $146 million.

The Hon. V.A. CHAPMAN: That is why I am trying to find it. It is the same page.

The CHAIR: Attorney, would you like the question repeated?

The Hon. V.A. CHAPMAN: We are on the Victims of Crime Fund for the Redress Scheme?

Mr PICTON: Yes.

Members interjecting:

The Hon. V.A. CHAPMAN: That's alright; I'm waiting for it.

The CHAIR: Order!

The Hon. V.A. CHAPMAN: I have them all marked ready.

The CHAIR: Attorney, do you need the question again?

The Hon. V.A. CHAPMAN: No, I think that is clear. We are now referring to $146.4 million paid to SAicorp from the Victims of Crime Fund for the cost associated with South Australia participating in the National Redress Scheme and people who have experienced institutional child sexual abuse.

One of the first acts of the new government was to attend the next available meeting, which was within weeks of the new government coming into office, so that we could sign up. We felt that this was an important scheme that South Australia should have at all times been participating in. It had not been. The previous government's view on this was well known. In other words, it provided a redress scheme itself and that was it.

We felt that this was a priority as a new government, and we moved to attend the meetings and conclude the outstanding issues that we had been left behind on in the negotiations. The Premier signed up to the Redress Scheme and it was paid across. If it were not for that progression of the matters as soon as possible after coming into office, I fear that we would not have been able to pass the legislation that was necessary and set up the scheme ready for commencement in early 2019.

We are still on track to do that. In fact, during the week I addressed a number of personnel in the Attorney-General's Department, who are taking up the responsibility to support those with applications foreshadowed for the purpose of this new scheme, and had a consulting meeting with three representatives from the commonwealth agency to assist them in that occurring. It was a matter that needed to be dealt with as soon as practicable, and it was.

Mr PICTON: What difference would there have been if the payment had been made in the 2018-19 financial year as opposed to the 2017-18 financial year? I understand that no victim has received any payments in the 2017-18 financial year. The scheme is not established or operational yet, so why did it need to be paid out before 30 June, and was that more about the accounting than actually setting this up?

The Hon. V.A. CHAPMAN: The question is: why was it necessary to pay it in that financial year if it was not going to be accessed by prospective claimants in respect of a specific payment? The very simple position is that we made a commitment to honour this agreement. We did so. We set aside the money and made it absolutely clear that that money was quarantined as a consequence of the sign-up. From memory, it was in about April that the Premier signed the agreement to participate. I do not actually have the date with me, but it was not long after the first meeting that took place at a national level with the federal minister.

He signed it on 25 May. We had the meeting, the agreement was signed on 25 May and we honoured that commitment by doing two things: one was to allocate the funding to be available for that purpose and make sure it is quarantined by placing it in the fund; secondly, pass the state legislation, which we then progressed as a matter of haste; and, thirdly, get all the machinery arrangements in place, which we are doing.

Mr PICTON: Can the Attorney outline what is going to happen to the interest accruing on the funding that has been set aside for the National Redress Scheme?

The Hon. V.A. CHAPMAN: I am advised that all the fund, including any interest on that fund, that is not utilised for the purposes of the scheme at the expiration of 10 years will revert back to the Victims of Crime Fund.

The Hon. A. KOUTSANTONIS: Now we are on to Keogh.

The CHAIR: So you will refer to—

The Hon. A. KOUTSANTONIS: Page 18, section 1.11 in your pre-prepared answer you have there in front of you.

The Hon. V.A. CHAPMAN: Sorry, which part? They are in both.

The Hon. A. KOUTSANTONIS: It is in Report 5 of 2018, the Executive Summary, Part A.

The Hon. V.A. CHAPMAN: Part A, yes. So you have missed the other one.

The Hon. A. KOUTSANTONIS: No, I have the other one here, too. Do not worry; I have them all, but we will start slowly and then work up.

Mr Teague: Is that a reference?

The Hon. A. KOUTSANTONIS: I do not know what you do in your spare time, but I am trying to do parliamentary business. In the report, we learn that the government had commissioned two pieces of legal advice, not the one. You might recall that I asked questions of this in the chamber in question time. The question is: the advice the government received in December 2017 from Wells QC and Doyle—and I am not asking you about the contents of the advice because I understand you will claim legal professional privilege, which is fine—who wrote the later piece of advice that was delivered to the government in May 2018?

The Hon. V.A. CHAPMAN: Can I just clarify a couple of things that the member for West Torrens has asked, and it relates to the questions that have been asked in question time, which were I think to suggest that in some way there had been some concealment of further advice obtained after the change of government in March 2018. I would like to invite the member for West Torrens to review questions that I have answered in this parliament. I do not know if he has done that yet or not, but I did as a consequence of this. I suggest he review the evidence of Mr Wait, the Crown Solicitor, and I think, from memory, the SAicorp representative from Treasury, and I think possibly even the chief executive, all of whom gave evidence to the Budget and Finance Committee.

It has been absolutely no secret—we have made it very clear throughout this matter—that in the lead-up to the election there had been 12 months or so of negotiation, correspondence and obtaining the Wells and Doyle report that had been referred to. Indeed, the member for West Torrens, as the former treasurer, had approved $250,000 in legal costs. There had been correspondence.

The Hon. A. Koutsantonis: To fight Keogh.

The Hon. V.A. CHAPMAN: He says to fight Keogh, but he might want to confer with the member for Enfield about what correspondence their government entered into. I hope he is given the full picture there. In any event, to the extent that it might help the member for West Torrens, at a recent attendance at the Budget and Finance Committee a letter was tabled, I think via Mr Keogh's own statement, a letter of claim that his solicitors had presented. It set out a number of matters, including an acknowledgement of the appreciation of the former attorney-general, not wishing to take advantage of any delay that might have occurred as a result of the government getting advice to in any way prejudice the right of Mr Keogh's prospective claim.

It might have been a matter where the member for West Torrens was hopeful that his $250,000 was going to be well spent in fighting Mr Keogh. Let me just make this clear by concluding on it: a letter that says, 'Dear Mr Keogh, get lost. I'll see you in court' is a lot cheaper than $250,000. Nevertheless, his government obviously did not elect to do that and a lot of money was spent. After March, the further—

The Hon. A. KOUTSANTONIS: Point of order: the question was who provided the advice in 2018.

The CHAIR: The question was about the advice, absolutely. Attorney.

The Hon. V.A. CHAPMAN: The continued negotiations with those senior counsel, Mr Wells and Mr Doyle, representing the new government in relation to the advice given and their assistance in the negotiations included the advice given, dated May 2018.

The Hon. A. KOUTSANTONIS: So to be clear, the May 2018 advice is from Wells and Doyle?

The Hon. V.A. CHAPMAN: Correct.

The Hon. A. KOUTSANTONIS: The Auditor-General says in his report that he was given access to the legal reports. In what form was that? Was it a written request to the Attorney-General or was it provided to him in the normal scope of his audit?

The Hon. V.A. CHAPMAN: The Auditor-General wrote to our office—I think it was directly to me—to inquire as to the consent required for him to view any of the material that was otherwise legal professional privilege and whether in fact that could be available. I confirmed to him that he was at liberty to view it, as is consistent with previous practice, on the basis that there was no release in relation to legal professional privilege and the contents were not to be disclosed.

I was trying to think of one of the other cases that involved something like this in previous years, again with the dates of certain reports that either went to cabinet or had the umbrella of protection under legal professional privilege. I cannot recall them specifically, but I am pretty sure that the plaza development inquiry by the Auditor-General was one of the latter inquiries in relation to the member for West Torrens' former government's activities—that is the kindest way I can describe it. That was, again, respected by the Auditor-General, even though he had scant access to very much by that stage of the former government's activities. Nevertheless, he has, of course, respected that.

The Hon. A. KOUTSANTONIS: When did the Auditor-General write to the Attorney seeking a copy of or access to the legal opinions, and in what manner did the Attorney respond?

The Hon. V.A. CHAPMAN: I can answer the second question: in writing. Dates I cannot recall specifically, but obviously it was prior to the publication of this report. It was made available to him for the purposes of reviewing the process, which, of course, the member for West Torrens will see is without incident.

The Hon. A. KOUTSANTONIS: Have any other agencies sought access to the legal opinions referenced in the Auditor-General's Report?

The Hon. V.A. CHAPMAN: Not that we are aware of.

The Hon. A. KOUTSANTONIS: So the Attorney-General has received no correspondence from any other agency seeking to access the legal opinion of December 2017 and May 2018 that the Attorney-General has relied upon?

The Hon. V.A. CHAPMAN: Not that we are aware of.

The Hon. A. KOUTSANTONIS: What was the cost of the second piece of legal advice provided by Mr Wells QC and Mr Doyle?

The Hon. V.A. CHAPMAN: As has been identified, probably by questions of the member for West Torrens to the Crown Solicitor when I think the same question was asked of him and he explained then—if the member for West Torrens has not read that transcript and/or refreshed his memory on it—the particulars of costs in relation to legal expenses are included in the legal professional privilege.

The Hon. A. KOUTSANTONIS: When the Auditor-General wrote seeking legal opinion, did he also seek access to the Crown Solicitor's opinion on the matter?

The Hon. V.A. CHAPMAN: Not that we are aware of.

The Hon. A. KOUTSANTONIS: So the legal opinions relied upon were the two given by Wells and Doyle, two renowned lawyers, but the Crown Solicitor's opinion was not sought on the Keogh matter and the Auditor-General did not have access to any Crown Solicitor's opinion on whether the payment should or should not be made?

The Hon. V.A. CHAPMAN: Not that I am aware of, but let us be clear about the question. When you say 'the only legal advice sought', perhaps the member misunderstands the role of the Auditor-General, which is surprising seeing as he was in charge of this division for a number of years. The Auditor-General is obviously entitled to review documentation and, from time to time, will seek permission to look at documents that usually no-one else can, such as cabinet resolutions, legal opinions and such.

My recollection is that the only matters that he sought permission to look at related to the legal opinions that were commissioned of Doyle and Wells. Whether he reviewed other documents, which he may have but he just has not specified them in here, as to other considerations that were given, I cannot answer as to what are the legal matters that came to the attention of the Auditor-General during his review of all the documents that were during this period, presumably from in or about May 2017, across the previous government, and then, of course, during the negotiations, which culminated in the payment from SAicorp.

I do not think it is reasonable that the member for West Torrens makes the assumption that these were the only two matters containing legal advice that were before him when he considered this matter. That is not specified.

The Hon. A. KOUTSANTONIS: Had the Crown Solicitor provided the Attorney-General with an opinion on the payment to Henry Keogh?

The Hon. V.A. CHAPMAN: I consulted with a number of office bearers, including the Crown Solicitor.

The Hon. A. KOUTSANTONIS: Did the Crown Solicitor prepare a piece of advice for the Attorney-General to consider before making a recommendation to the South Australian Government Financing Authority?

The Hon. V.A. CHAPMAN: If he did, I do not think I am in a position to make any comment about it.

The Hon. A. KOUTSANTONIS: I am not asking what it says.

The Hon. V.A. CHAPMAN: I realise that, but I am just saying to you that any meetings or advice or consultations or information that are conveyed from the Crown Solicitor to me are privileged and I do not waive it.

The Hon. A. KOUTSANTONIS: How did the Attorney-General communicate to the South Australian Government Financing Authority her view that Mr Keogh should be paid $2.57 million?

The Hon. V.A. CHAPMAN: I did not personally write to SAicorp to advise them of that. I think some memoranda were prepared to advise of the negotiated arrangement once concluded, but I cannot recall signing any particular letter. Some kind of memorandum has gone from the Attorney-General's office to the Treasurer and/or SAicorp to obviously implement the matter.

It seems to me that one of the things that has perhaps confused the member for West Torrens in this whole exercise is that whilst Mr Keogh, through his solicitors, sought from the previous government favourable consideration of an ex gratia payment, in fact what was achieved in the resolution of this matter was a payment to Mr Keogh but in full settlement, as per the deed, which has been tabled in this parliament, of any civil liability.

We are very pleased with that because, as the member for West Torrens would well know, people have secured millions of dollars in some of these settlements around Australia, sometimes without the shield of protection against civil liability. This was an important matter to us, as was the view that the amount should be public and the terms of the deed should be public.

The Hon. A. KOUTSANTONIS: I just point out that earlier the Attorney-General asked me to refresh myself with the Budget and Finance evidence. I would ask her to refresh herself with the evidence of the South Australian Government Financing Authority to Budget and Finance about what advice they received about how to make this payment. It is important to note that the Attorney just told the house that she sent no letter—

The CHAIR: Yes—

The Hon. A. KOUTSANTONIS: —to the South Australian Government Financing Authority apart from a memorandum, which is a very interesting—

The CHAIR: Member for West Torrens, you need to ask a question.

The Hon. V.A. CHAPMAN: It might be interesting, but let's get to the facts.

The Hon. A. KOUTSANTONIS: Yes, we will. We will, one way or another. Once the memorandum by the Attorney was signed, I assume that the memorandum was addressed to the Treasurer and attached to it was the legal opinion and a precis of a recommendation by the Attorney-General for a payment, and then the Treasurer made an independent assessment about whether or not that payment was justified and therefore authorised SAFA to make the payment. Regarding the memorandum that the Attorney has referenced, can she give the committee of the house the date that she signed that memorandum?

The Hon. V.A. CHAPMAN: No, I cannot give that to you, and I have not indicated that I have signed a memorandum. I have indicated that my understanding was that a memorandum had gone from the Attorney-General's office as such to SAicorp and/or the Treasurer. I do not recall signing a letter. I think it was in a memorandum form of advice but, as to the dates, I could not tell you.

The Hon. A. KOUTSANTONIS: So if the Attorney-General did not sign a memorandum, the Attorney-General did not—

The Hon. V.A. Chapman interjecting:

The Hon. A. KOUTSANTONIS: Okay, I am guessing you are going to go and check and get back to the committee.

The Hon. V.A. CHAPMAN: I am happy to do that if you ask for it.

The Hon. A. KOUTSANTONIS: Thank you very much. I do ask that the Attorney-General go back and check because I think it is important to the parliament to know who in AGD informed the South Australian Government Financing Authority and the Treasurer of an opinion that this payment should be made. If it was not the Attorney-General, we would like to know who it was. I would like to get an undertaking from the Attorney-General to bring that back to the house.

The Hon. V.A. CHAPMAN: I am happy to accommodate whatever information I am able to provide to the committee in respect of the notification, as to the format and when, of the considered resolution on the legal advice that we had from the senior counsel, if that is available. If it is cabinet in confidence, then I will not be able to. Nevertheless, if it is available, it will be provided to the committee.

The Hon. A. KOUTSANTONIS: The Attorney-General has mentioned cabinet and has in previous answers said that this was a cabinet process. Was the Auditor-General given access to any cabinet documents in relation to the Keogh payment?

The Hon. V.A. CHAPMAN: I do not think so, but it is not my recollection that he ever asked to. This is something that the Auditor-General has made comment about in his report generally as to access to cabinet information. I think it is fair to say that, in his previous reports, he has been a little upset about the treatment that his office was given by the former government and the denial of access to information that was prepared for the purposes of cabinet. He has made no secret of his requests for there to be a mature and respectful relationship restored for the purposes of considering whether government agencies are doing the right thing. That is his job.

I know that the former government had a big change of heart as to how this would operate post the Gillman decision of the Auditor-General. In fact, very quickly the former premier announced a new set of guidelines for unsolicited bids and then also announced his new regime that was going to apply in relation to access to cabinet documents.

In this matter I do not recall there being any request by the Auditor-General, or his representative, presented to me or our department to access cabinet material, but I do specifically recall him making a request to be able to review the material. He has confirmed in here that it was subject to legal professional privilege, and that was not waived.

The Hon. A. KOUTSANTONIS: Could the Attorney-General again confirm that she will check to see if the Auditor-General did indeed make any request for any cabinet documents or cabinet submissions or cabinet notes regarding this payment and get back to the committee?

The Hon. V.A. CHAPMAN: Yes, to the extent that I have already indicated, that if there had been any request made or that the conveying of information as I have previously said was the subject of cabinet in confidence, if that was available, I would make that available to the committee.

The Hon. A. KOUTSANTONIS: Who prepared the deed of settlement that Mr Keogh and the government signed?

The Hon. V.A. CHAPMAN: The Crown

The Hon. A. KOUTSANTONIS: Was it at the request of the Treasurer or the Attorney-General?

The Hon. V.A. CHAPMAN: We will have to check that, to the extent of where instructions for the preparation of the actual deed had come from. But certainly a number of the terms on it, which are here in the parliament, had been the subject obviously of negotiations that were in the Attorney-General's side of things. We are pretty focused on how things get prepared and done properly. I can tell you, after I first sighted the Nyrstar agreement, it reminded me of how important that was.

The Hon. A. KOUTSANTONIS: I am glad there is a paper trail we can follow to find all this out. It is important to know who prepared the deed because the Attorney-General has told this parliament that she was not the decision-maker, as has the Crown Solicitor. So it is important to know who prepared the deed. Did the deed that was prepared go through various drafts, or was there one presented to Mr Keogh as a final?

The Hon. V.A. CHAPMAN: I think that is a matter that is subject to privilege. But as has been made clear to the member, the final deed is tabled.

The Hon. A. KOUTSANTONIS: When the deed was being prepared, were any drafts of that deed made available to the Auditor-General?

The Hon. V.A. CHAPMAN: I am afraid I will have to claim privilege in relation to that.

The Hon. A. KOUTSANTONIS: Given this matter was considered by cabinet, as the Deputy Premier has said—I am not interested in what the deliberations inside the cabinet were—were any draft cabinets submissions made available to the Auditor-General?

The Hon. V.A. CHAPMAN: As I indicated, I do not recall there being any request by the Auditor-General to inspect documents. All I can recall is that the only thing he asked permission to do was to look at the legal advice. On the basis of not waiving privilege, he was granted that, as has been recorded in the matter. I thank the Auditor-General for concisely setting out what happened in this matter. In case the member is interested, he also did so in Part B, under the SAicorp division, which I am sure he has read. It reaffirms exactly what we have said: we sorted out this matter, we did it properly, we have paid the money and it is the end of the matter.

The Hon. A. KOUTSANTONIS: You certainly did pay an accused murderer a lot of money.

The Hon. V.A. CHAPMAN: Again, I ask that that be withdrawn, Mr Chair. There has been precedent on this. Each time the member for West Torrens—

The CHAIR: I take your point of order, that—

The Hon. A. KOUTSANTONIS: I will not withdraw.

The CHAIR: You are not going to withdraw?

The Hon. A. KOUTSANTONIS: No, he is an accused murderer. He is. The court found that he should be charged with murder and—

The CHAIR: Your comment was, 'You certainly—

The Hon. A. KOUTSANTONIS: I withdraw that. But the Attorney-General of the government paid an accused murderer $2.57 million. I stand by that.

The CHAIR: That is not what you said earlier. That is not what you were asked to withdraw.

The Hon. A. KOUTSANTONIS: What was I asked to withdraw, sir?

The CHAIR: From memory, I think you said, 'You certainly paid a significant amount of money.'

The Hon. A. KOUTSANTONIS: Yes, $2.57 million is a significant amount of money to an accused murderer, yes, sir.

The Hon. V.A. CHAPMAN: The member for West Torrens has repeatedly come into this house and made reference to the settlement of this matter in relation to a convicted murderer. When challenged, he has withdrawn it. His modus operandi now is to refer to the party to these proceedings to be an accused murderer. The situation is that there are no current proceedings—

The Hon. A. Koutsantonis: He's a prime suspect, according to the police.

The CHAIR: Order! Continue, Attorney.

The Hon. V.A. CHAPMAN: —in relation to Mr Keogh. Sadly, in a case like this, we may never find out what happened to Anna-Jane Cheney, but the reality is for the member for West Torrens to keep coming into the house and referring to this person as an accused murderer is not correct, and I think that he should withdraw that. He can make a complaint according to his view in respect of the history of this matter; plenty of people do.

He can say, as a matter of fact, that Mr Keogh has been the subject of proceedings, he has been convicted, the conviction has been quashed and there has been a further charge laid and a nolle prosequi entered, but to come into the parliament and misrepresent the circumstances now—to say that he is an accused murderer—is totally unacceptable and I suggest it be withdrawn.

The CHAIR: Attorney, I have had discussions with the Clerk, who is suggesting that the terminology used is not unparliamentary nor has it caused you offence personally, so there is no necessity for it to be withdrawn. The committee is concluded.

Progress reported; committee to sit again.

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