Legislative Assembly for the ACT: 2008 Week 09 Hansard (Thursday, 21 August 2008) . . Page.. 3441 ..
Mr Gentleman: Which team?
MR STANHOPE: Yes, both the A and the B teams, of course. So they say: “Let’s actually get into the gutter and ignore the advice that’s available. Let’s be as blatantly and shallowly political as we can and let’s bring down a report of absolutely no substance and a grubby, nasty little report at that.” I have just read and interpreted the opening paragraph which actually refers to advice from Mallesons—quite succinct advice. I will read it again:
It is clearly established that it is the directors of a corporation formed under the Corporations Act who are responsible for setting the strategic direction of the corporation, and not its shareholders … it would be completely wrong to suggest that voting shareholders bear any responsibility or duty to determine the direction of the TOC … [a]s to the issue of uncertainty … in some circumstances, the legal duty of the board may in fact be to “tread water” rather than commit to long term strategy.
They say: “Let’s ignore that. Let’s forget we read that. Let’s then go on and actually make allegations in relation to the behaviour of the shareholders in relation to this particular matter on the basis that perhaps Rhodium did tread water,” consistent with the only legal advice which the committee had before it. This interpretation, this spin, this outrageous politicking which Mr Smyth most particularly has played with this report and on this issue in relation to the shareholders and their responsibilities should be treated with the utter contempt that it deserves. It is quite interesting that the report goes on to state:
During the Chief Minister’s appearance before the Committee he was clear that the idea that the shareholders should have a role beyond that outlined in ACTEW’s legal advice caused him “surprise and ... some disquiet” and went on to say that the legal advice suggests:
that the Auditor-General’s Office has misconstrued in a legal sense the nature of the relationship between a territory-owned corporation and the shareholders, to the point where, if one weren’t careful in one’s interpretation of the comments which the Auditor-General has made, there is a serious prospect of both shareholders and directors of our territory-owned corporations being in breach of the law.
That remains my concern. This report does nothing to explore this particular issue or to allay those concerns. The report continues:
The Committee agrees that this is an area that needs clarification. While the Committee understands the concern that this comment has raised, the Committee does not believe that the Auditor-General intended to suggest that shareholders …
There we have it: the committee understands that the auditor did not intend to suggest that shareholders should have overstepped their legal authority. But the committee thinks otherwise. (Time expired.)
MR MULCAHY (Molonglo) (12.20): I have been deeply involved in the investigation of Rhodium through my former role as chair of the public accounts