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Legislative Assembly for the ACT: 1999 Week 7 Hansard (30 June) . . Page.. 1770 ..
MR STANHOPE (continuing):
establishing for members a "sacred trust" over taxpayers' money. There may be occasions when a Minister can avoid responsibility for his or her actions or the actions of a department. This is not one of them.
The Financial Management Act was introduced by the Chief Minister in her capacity as Treasurer of the ACT. It is her Act and she cannot, therefore, possibly raise the argument that she did not know its requirements. Nor is it fair of her to seek to attempt to pass the buck to her department. The person responsible for bringing requests for appropriations to the Assembly is the Chief Minister and Treasurer. The budgets are her budgets. The failure to properly appropriate funds for the redevelopment of Bruce Stadium is her failure.
Unfortunately for her, an apology published in the press, or even made on the floor of this Assembly, will not cure such a fundamental breach of the law and parliamentary procedure. It is not just the ALP and its supporters that say she has breached the law. Three eminent legal advisers, engaged by all sides of this Assembly, have stated that the Government has breached this principle and these laws. The evidence is that clear and that unequivocal. The Government's adviser was Mr Richard Tracey, QC. Mr Tracey advised, among other things:
... the requirement that the expenditure of public moneys be authorised by legislative appropriation has been a feature of parliamentary government based on the Westminster model since the passage of the Bill of Rights in 1688 ... and is a requirement that lies at the heart of modern notions of responsible government ... The principle has been adopted and forms part of the system of responsible government which operates in the Australian Capital Territory.
Mr Osborne engaged emeritus Professor Jack Richardson and Mr Jim Colquhoun to provide advice. According to them:
... the effect of giving guidelines a retrospective operation would, if valid, be to legalise expenditure of public funds which at the time would be illegal in the absence of a covering parliamentary appropriation. In our opinion, a court would ... decline to uphold an action of the Executive seeking ... to validate the use of public funds which at the time it had no right to use.
The Opposition briefed Mr John Sackar, QC. Mr Sackar advised, among other things:
On the facts given to me it is beyond question that $9.714 million expended on Bruce Stadium in the year ended 30 June 1998 was unlawful expenditure by the ACT Government. The obtaining of the loan by the ACT Government from the Commonwealth Bank of Australia and the repayment of that loan between 30 June 1998 and 1 July 1998 was unlawful. The purported retrospective guidelines said to cure the consequences of that unlawful conduct were themselves unlawful, at least to the extent that they purport to have retrospective operation.
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