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Legislative Assembly for the ACT: 1999 Week 7 Hansard (30 June) . . Page.. 1777 ..
MR STANHOPE (continuing):
On 28 April, the Chief Minister told the Canberra Times that there had been a "possible technical problem with the legislation that may need to be amended". But this is far from a technicality. As I discussed previously, and as the courts have ruled, the Government's actions in spending public funds without an appropriation by this Assembly are a breach of the most fundamental principles of government and the law. The Privy Council found in the Auckland Harbour Board case of 1924 - a case that is still law and still applied - as reported by Mr Tracey:
The days are long gone by in which the Crown, or its servants, apart from the Parliament, could give such an authorisation [for the expenditure of public money] or ratify an improper payment. Any payment out of the Consolidated Fund made without parliamentary authority is simply illegal and ultra vires, and may be recovered by the government if it can, as here, be traced.
Three times in different interviews on ABC radio between 29 April and 6 June the Chief Minister ran another defence about the Government's failure to raise the private sector finance. No longer was there any question of up-front revenue or no dollars out without dollars in. No, by now it was a question of the Government waiting until the end of the project, until all the bills were in and the final cost was known, of cash managing the middle bit and waiting for the cargo cult plane to land.
In one of those ABC interviews - on 30 April - the Chief Minister introduced the section 38 defence. It was first introduced on 30 April this year. For the first time, she revealed that the Government was looking at that section of the Financial Management Act which defines investments. Of course, on 19 May, three weeks later, the Government made its financial management guidelines, backdated to commence on 1 July 1997, which prescribe for the purposes of section 38(1)(e) an investment in Territory owned property as a prescribed investment.
Mr Speaker, I guarantee that, not until the Auditor-General wrote to the ACT Government Solicitor on 22 October 1998 for advice on the legality of the Government's action, had it occurred to a single person in the Government that the redevelopment of Bruce Stadium was an investment. It had not occurred to a single person in the Government or the Public Service until the Auditor-General wrote to the Solicitor on 22 October and said, "ACT Government Solicitor, I am worried that the Government has not abided by the law. Will you give me advice on this?". One can imagine the panic that occurred after that. How can we legalise what is patently unlawful behaviour?
Mr Speaker, I have searched every set of minutes of the Bruce project control group released to the Assembly by the Government - I have looked at and read every set of minutes of that group - and I could not find the word "investment" once. The decision to seek to describe Bruce as an investment was dreamt up as a lame excuse to try to legalise unlawful behaviour. The Auditor had sprung the Government. Instead of simply copping it sweet, the Chief Minister and the Government have assailed us with this range of absurd, insulting and derisory justifications and defences of their behaviour.
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