Report of the Auditor-General
Report Pursuant to Sections 32 and 36 of the
Public Finance And Audit Act 1987: Matters Associated
with the 2001-02 Proposal Concerning the Establishment
of an Ambulance Station at McLaren Vale
This matter raises several important issues of principle with respect to public financial administration in this State. It also raises issues concerning the adequacy of the controls associated with the exercise of Ministerial Executive power in circumstances that can give rise to an actual or potential conflict of interest and duty.
Notwithstanding the fact that the amount of money associated with this matter is not significant in public sector terms,[1] this examination has identified matters where there has been a failure to appreciate the application of certain requirements of public importance in the administration of public finances in this State. In my opinion, having regard to other instances in recent times of agency senior management failing to appreciate the need to comply with legislative requirements, there is a need to review the level of awareness of relevant personnel and to re-emphasise the importance of compliance regarding these matters.[2]
South Australian Ambulance Service (SAAS), at the relevant time, was an entity that received government grant funding through the Emergency Services portfolio.[3] In 2001‑02, this amounted to $40million.
In late 2000, SAAS commenced consideration of a proposal to build and operate a new ambulance station in McLaren Vale. Provision of government recurrent funding to meet the cost of staffing the station was integral to a decision of whether SAAS would go ahead with the proposal.
In August 2001, in response to a request from SAAS for funding assistance from the State Government in relation to the then proposed ambulance station at McLaren Vale, the then Minister for Emergency Services approved, as an interim funding mechanism, the use of funds, amounting to $170000 excluding GST, that the Crown was to receive from a sponsorship arrangement involving the State Rescue Helicopter Service. The funds were provided directly to SAAS from the sponsor, Adelaide Bank,[4] without first being paid into the appropriate government account as required by law. For the reasons discussed in this Report, this arrangement did not comply with the requirements of the Public Finance and Audit Act 1987 and relevant government accounting and administrative practices.
In September 2001, issues were raised in the Parliament associated with the matter of the proposed ambulance station.
The audit examination has highlighted the need for constant attention to adherence to the standards and practices mandated in the public sector to ensure that public confidence in public administration and, in particular, public financial administration, is maintained.
A policy of openness/transparency will, in my opinion, do much to allay suspicion that there has been unacceptable conduct. The exercise of Ministerial discretionary powers should, in my opinion, be undertaken so as to avoid perceptions of a conflict of interest and duty. This is a matter of particular importance in those circumstances where the beneficiary is, for political and/or other reasons, the Minister himself/herself in the Minister’s own electorate.
The present position is that, at this stage, no ambulance station has been built at McLaren Vale. This is simply a matter of the Government of the day determining its own priorities and policy goals having regard to available financial resources.
After an earlier audit request from the Treasurer had been overtaken by other events,[5] on 12 May 2004, the Treasurer, the Hon Kevin Foley MP, made a request to the Auditor‑General in the following terms:
In accordance with section 32 of the Public Finance and Audit Act 1987, I request that you examine the accounts of the South Australian Ambulance Service and the efficiency and economy of its activity with respect to the proposal to establish an ambulance station at McLaren Vale
Whilst this is a report pursuant to section 32 of the Public Finance and Audit Act 1987, for completeness, I have included some observations regarding some matters that should, in my opinion, be brought to the attention of the Government and the Parliament.
Both the SAAS and a Minister of the Crown are ‘public authorities’ within the meaning of the Public Finance and Audit Act 1987 and are subject to audit by the Auditor-General.[6] When considering whether the controls exercised by both the SAAS and the then responsible Minister in relation to the McLaren Vale Ambulance Station were ‘sufficient to provide reasonable assurance’ that the financial transactions relating to that station ‘have been conducted properly and in accordance with law’, it is necessary, inter alia, to identify any improper and/or unlawful elements associated with the transaction.
During the course of my examination I became aware of certain matters relating to the establishment and funding of the proposal for the McLaren Vale Ambulance Station that raised the question whether the financial transactions of the SAAS and the conduct of the Minister were proper and in accordance with law.
For the purposes of my reporting obligations under section 36 (1)(a)(iii) and section36(1)(b) relating to any matter that should, in my opinion, be brought to the attention of Parliament and the Government, I determined that I should prepare a Supplementary Report under section 36(3) relating to that matter and deliver that Supplementary Report to the Parliament at the same time as the report pursuant to section 32.
In summary, instead of delivering two separate reports relating to the same subject matter, this Report deals with both my obligation in respect of my examination under section 32 and my reporting responsibilities under sections 36(1)(a)(iii) and 36(1)(b).[7]
Fundamental to the public finances is the principle that all revenue received by or on behalf of the Crown (public money) is subject to the control of Parliament. Public money is collected and administered by the Crown and spending of public money may not occur without Parliamentary appropriation/authority.
In South Australia these principles are established in the Public Finance and Audit Act 1987. The legislative controls are, in turn, supported by conventions and administrative practices.
Good and proper public administration requires compliance with relevant statutory requirements and adherence to established conventions and administrative practices. I have stated previously that this is essential to protect the community from the arbitrary exercise of governmental power and the misapplication of public monies.[8] A failure to maintain proper standards has the capacity to undermine the requirement of the need for compliance and thereby magnify the risk of further breakdown of control.
For the reasons discussed in this Report, in the case of the funding arrangements for the then proposed McLaren Vale Ambulance Station, the use of sponsorship funds for that purpose failed to comply with the relevant statutory requirements for the public accounts. In giving the direction that he did in this matter, the then Minister, in my opinion, assumed a prerogative authority that he did not possess, and hence, his direction, for the reasons discussed in this Report, was unlawful.[9]
Furthermore, the arrangements in this matter, undertaken at Ministerial direction, established a commitment that was, in my opinion, pre-emptive of due budget processes and, as such, was contrary to good and proper public administration. It was also inconsistent with long standing practices concerning the funding of unforeseen expenditure that arises between the annual budgets presented by the Government (iethe Crown) and considered by Parliament as the basis for the appropriation of the public finances.
Procedures/processes of government that are contrary to law are not either efficient or economic in that, on discovery, unnecessary cost is incurred in implementing corrective measures.
In this context, the following commentary from the Report of the United Kingdom Committee of Public Accounts ‘The Proper Conduct of Public Business’ is, in my opinion, relevant:
Some allege that the drive for economy and efficiency must be held back to some extent because of the need to take specific care with public money. Others argue that if economy and efficiency are to be forcibly pursed then traditional standards must be relaxed. We firmly reject both these claims. The first is often urged by those who do not want to accept the challenge of securing beneficial change. And the second is often put forward by those who do not want to be bothered to observe the right standards of public stewardship. Quite apart from the important moral and other aspects involved we consider that any failure to respect and care for public money would be a most important cause of a decline in the efficiency of public business. But there is no reason why a proper concern for the sensible conduct of public business and care for the honest handling of public money should not be combined with effective programmes for promoting economy and efficiency.[10]
With respect to the matter of the exercise of Ministerial Executive power, there is judicial authority that such power must be exercised for a public purpose and not for a private purpose.[11] It has also been judicially acknowledged that in some cases where public power is exercised it may be exercised after taking into account a factor which is political, and further, that the public power in question may be exercised for the purpose of achieving a political object.[12]
Political practice, even commonly accepted political practice, does not excuse conduct that may, on analysis, be shown to be contrary to law and/or such as to be otherwise inappropriate as being contrary to the principles of good public administrative practice.
A Minister whose portfolio responsibilities necessarily extend to matters within his or her own electorate cannot abdicate responsibility for dealing with those matters as may be required in the public interest. He or she would, in general, have a legitimate interest in expressing views about those matters. Nonetheless, he or she would also be aware that allegations of electoral self-interest may well be made if he or she makes decisions that favour that electorate (or is seen to improperly influence others who are responsible for such decisions, or who advise the Minister in relation to such decisions). In those circumstances, the key issue may concern the defensibility of such decisions according to the principles of good public administration, rather than whether legal sanctions (criminal or civil) may flow.
High standards are properly required of those in public office.[13] Nonetheless, as Professor Paul Finn (now Justice Finn of the Federal Court of Australia) has pointed out:
We have to realise that public office is based on a conflict between duty and interests. We would be deluding ourselves if we did not start on the premise that politics is concerned about compromise, partiality and self interest behaviour. The problematic question is where on the spectrum does that behaviour become unacceptable.[14]
From the point of view of the discharge of the statutory responsibilities of an Auditor‑General pursuant to the Public Finance and Audit Act 1987, one of the important issues in a matter of this type is whether the controls associated with the way in which political factors were taken into account, and the management of the apparent conflict of interest and duty to act with impartiality, provide reasonable assurance that the decisions regarding the expenditure of public money and the incurring of liabilities conforms with established objective standards of propriety and lawfulness.
The audit examination of this matter indicated that the issues that arise are as follows:
The lawfulness of the processes concerning the expenditure of public monies and the accounting therefore.
The exercise of Ministerial powers in circumstances that can give rise to the perception of a conflict of interest and duty and claims of ‘political pork barrelling’.
Project approval processes within SAAS with respect to the proposal regarding the establishment of a 24 hour manned ambulance station at McLaren Vale in 2001-02.
The matter of personal Ministerial responsibility for decisions.
The matter of public sector advice to Ministers as applicable in the circumstances examined in this Report.
Each of these issues is the subject of analysis and report herein.
In this matter, the responsible Minister was acting as the agent of the Crown.[15] Monies received by him were required to be dealt with in accordance with the established legal framework including, as mentioned above, the requirements of the Public Finance and Audit Act 1987.
Where, for whatever reason, there is a dealing with public monies that is inconsistent with the expenditure approvals granted by the Parliament, and/or there is non‑compliance with relevant statutory requirements, it is the responsibility of the Auditor‑General, should he/she consider it to be appropriate, to bring such matters to the notice of the Parliament. In my opinion, for the reasons stated in this Report, the monies received by the Minister for the purpose of the State Rescue Helicopter Service were not dealt with in the manner required by law.
Concerns were raised by a SAAS staff member regarding the accounting arrangements to be adopted in this matter. These concerns were dismissed by Mr Pickering, the then Chief Executive Officer of the South Australian Ambulance Service (SAAS) on the basis of his earlier advice from Mr Birch[16] and a Ministerial direction given at that time. In my opinion, for the reasons discussed in this Report, Mr Birch’s advice was not correct, and, the Minister did not have the authority to give such a direction. Accordingly, the dismissal by Mr Pickering of the concerns raised by the SAAS employee was, at the least, misinformed.
In the event, the matter of eventually putting the sponsorship funds through the proper government accounts was corrected, but only, in my opinion, due to circumstances associated with a change in the Government in March 2002. Following the change in the Government there has been a deferment of the project for the time being. No ambulance station has been built at McLaren Vale.
The conditional approval in 2001 by the SAAS Board regarding the McLaren Vale Ambulance Station would not have been carried through without the prior approval of the then Minister to authorise the use of the sponsorship funds for recurrent funding in 2001-02. It follows that the Minister’s decision was material in the processes of the SAAS Board in the latter deciding to proceed with the establishment of the McLaren Vale Ambulance Station.[17]
A matter that arose in the course of this examination was whether the decision to establish an ambulance station at McLaren Vale involved an unlawful and/or improper exercise of Ministerial power. This arose from the fact that the decision on the part of the then Minister related to the establishment, in his own electorate, of an unbudgeted and previously unplanned ambulance station in circumstances where claims were raised publicly that there was some dispute as to the need to establish an ambulance station at that time and in that location.
It is important to emphasise that in this matter the Minister was relating with an independent Board, ie SAAS.
The factual circumstances give rise to a question as to the exercise of Ministerial powers in circumstances that can give rise to the perception of a conflict of interest and duty. In short, this matter has given rise to claims of what is colloquially termed, ‘political pork barrelling’.
Having regard to all of the evidence, and for the reasons discussed in this Report, apart from the matter of the arrangements for recurrent funding in the 2001-02 financial year that are the subject of separate analysis herein, in my opinion, the decision making process associated with the proposal to establish an ambulance station at McLaren Vale, did not involve the improper exercise of Ministerial power.
Having regard to all of the evidence, it has been established to my satisfaction that the decision to establish an ambulance station at McLaren Vale was made independently by the Board of SAAS. It is clear from the evidence that the then Minister indicated a ‘strong interest’ in having the McLaren Vale Ambulance Station established in 2001-02. Nonetheless, whilst noting the Minister’s strong interest, the SAAS Board did independently assess the need for a ambulance station. This need was determined on the basis of objective criteria.
The Board did not simply do as requested by the Minister, although it is obvious that it was the Minister’s interest that prompted the Board to undertake its own analysis of the need in the McLaren Vale area, which, absent the then Minister’s expressed interest, it was not, of its own volition, minded to do at that time.
Although the term ‘pork barrelling’ may be used to described situations of this type, in my opinion, the then Minister was not acting unlawfully/improperly in urging the Board to consider his request. A Minister, within the law, has the right to advocate his/her point of view.[18] It would be a different matter if the Minister had sought to improperly influence the Board, ie by implied threat of some form of retaliation if it did not do as he desired. There is, in my opinion, no evidence of that or any other form of improper pressure being brought to bear on the SAAS Board having occurred.
The decision of the Board to approve a 24 hour manned ambulance station was a judgment call to be made by the Board. There is no evidence that suggests that the Board acted otherwise than with due diligence and in good faith in making this decision. A full time crew at McLaren Vale would achieve the improvement in response times for ambulance services in that area that was consistent with the response criteria that the Board had established as desirable for the Ambulance Service.
Although McLaren Vale was not budgeted for in the 2001-02 financial year, the provision of recurrent funding, with the prospect of continuing recurrent funding, together with the availability of land for a peppercorn rent, was an opportunity that the Board of SAAS determined to be in the interests of the Ambulance Service.
For the reasons referred to in this Report, the Board of SAAS acted responsibly in ensuring that no ongoing recurrent commitments were entered into without receiving an assurance that funding would be made available. In this particular matter, as discussed in this Report, the Ministerial commitment to meet ongoing funding was not confirmed through the regular processes of government. Having regard to the involvement of the then Premier in the launching ceremony at McLaren Vale on 17 October 2001, and the Ministerial approval of funding from the sponsorship monies received from the Adelaide Bank for 2001-02, it was not unreasonable for the Board to have acted as it did regarding approval to proceed. It needs to be noted that the Board proceeded with due caution in this matter in that it sought confirmation from the Government regarding the ‘ongoing funding’ for this station as an essential part of its own approval process.[19]
One of the issues that has arisen in the context of this examination is that of the reliance by a Minister of the Crown on the advice of others, in this case a senior departmental manager, ie a Deputy Chief Executive. In my opinion, where the Minister is the person who makes the actual decision, although the Minister may be acting upon, and indeed, is reliant upon, the advice of a senior departmental officer, the Minister/himself/herself is personally responsible for that decision. For the situation to be otherwise, it would mean that there would be no personal accountability for any actions or decisions that a Minister may do or make where it was possible to claim that the Minister was simply acting on the basis of advice. Vis‑a‑vis the Minister, those providing advice are acting in an ‘advisory capacity’. The Minister at all times remains the decision maker and is free to accept, modify or reject any advice received.
Where the Minister has not been personally involved in the making of the decision or giving the direction to undertake a course of action, ie the matter has arisen and been determined by public officials within the Minister’s Department, in my opinion, the Minister in these circumstances, whilst Ministerially accountable to the Parliament, is not responsible in the sense of being personally culpable.
What this type of issue does underline is the necessity for a Minister to ensure that those who provide advice, ie departmental, personal staff, consultants, etc possess the necessary knowledge and judgment that is relevant to the particular circumstances involved.[20] Notwithstanding the advice received from others, it is basic that the Minister must exercise his/her personal judgment to overlay the advice received from others.
In a public sector environment, Ministers can rightly expect that senior departmental managers are knowledgeable of those important legislative and procedural requirements that are applicable, and that they will alert the Minister should the Minister be minded to pursue a policy objective or course of action that may be in contravention of express statutory prohibitions, or may otherwise be inimical to the principles of good public administrative practice. In circumstances where a departmental manager is uncertain about a particular matter, due diligence requires that proper inquiry be made before advice is tendered to a Minister.
Where a Minister seeks, and then relies upon the advice from persons who would reasonably be considered competent to provide that advice, and the advice for whatever reason is incorrect, whilst the Minister must accept the personal responsibility for any outcome that may eventuate, in my opinion, in these circumstances, subject to the Minister acting reasonably and in good faith, the Minister’s personal culpability would be considerably mitigated.
In the matter of the use of sponsorship monies, the Hon Robert Brokenshire MP JP (the then Minister of Emergency Services) relied upon the advice of MrBirch. Mr Birch was the Deputy Chief Executive of the Attorney-General’s Department. In my opinion, the Minister was correct to require that the advice of the Department was sought before he made a decision.
The advice provided by Mr Birch was that the Minister could authorise the re-allocation of the sponsorship monies.
With respect, in my opinion, Mr Birch was, for the reasons discussed in this Report, mistaken in his view that this course of action was open to the Minister. In short, Mr Birch’s advice led to the payment of the sponsorship monies directly to SAAS without first being paid into the SAPOL Special Deposit Account from which they would then be payable into the Consolidated Account. The course followed in the application of the monies was in fact unlawful in that it was contrary to the provisions of the Public Finance and Audit Act 1987.
There is no evidence that suggests that Mr Birch was not acting otherwise than in good faith in providing the advice that he did.[21] Nonetheless, he had a professional responsibility to take the necessary care to properly advise the Minister. Compliance with mandated legislative requirements is of central importance in the exercise of government powers. Regrettably, Mr Birch, for whatever reason, did not alert the Minister to the applicable legislative arrangements that, in my opinion, applied in relation to this matter.
On 16 August 2001, a formal ceremony for handing over the sponsorship cheque was held at the Adelaide Airport, attended by the Minister, the Managing Director of the Adelaide Bank, and others. It was not known to the sponsor at the time of passing over the cheque, that on the previous day, the monies being paid over had already been authorised to be redirected to the use of the SAAS for the purpose of the recurrent funding of the proposed McLaren Vale Ambulance Station.
In my opinion, for a Minister to publicly receive monies by way of sponsorship for a stated purpose that had been the subject of a government advertisement in the knowledge that the money was already committed to be used for another different purpose, raises questions as to the propriety of the conduct involved.[22] In short, in my opinion, such conduct, on becoming publicly known, has the tendency to undermine the confidence of the public in the integrity of government processes and may discourage donations to those public and charitable causes which are managed by or through the Government. Assessed on objective standards, there was a lack of transparency in the manner in which this transaction was undertaken.[23]
Although this was a contractual relationship between the Minister (on behalf of the Crown) and the sponsor, it did involve the understanding that the sponsorship monies were for a particular nominated purpose, ie support of the operations of the State Rescue Helicopter Service. The monies were not provided for the purpose of being immediately directed to cover the recurrent expenses for a proposed ambulance station at McLaren Vale.
There should, in my opinion, be no uncertainty/ambiguity regarding the application of funds received from the community (corporate and public) associated with the operations of a facility that has importance for the community in times of crisis and disaster. Where funds are not applied strictly as intended when contributed from corporate/public sources concerns can justifiably arise.[24]
Mr Brokenshire has stated that:
The Adelaide Bank sponsorship was a commercial arrangement which allowed the Bank to be associated with SRHS. The helicopters used in that service frequently appear on television screens and pursuant to the sponsorship, they carry the Bank’s signage. The Bank received the commercial and community advantage to which it was properly entitled. I understood that the contract with the Bank did not require the funds to be spent on the helicopters. Their operating costs were already funded from government sources. What happened in relation to previous sponsorship funds was not relevant because the Bank was a new sponsor under a new contract.
Mr Brokenshire is correct in that the money that was received was not required ‘to be spent on the helicopters’. In making this representation, Mr Brokenshire, with respect, has failed to understand the mandated statutory obligations that were incumbent upon him as a Minister of the Crown with respect to the receipt of this money.
For the reasons stated in this Report, I do not accept Mr Brokenshire’s view of the matter. In my opinion, a Minister in receiving sponsorship monies in the circumstances of this case involving a public advertisement should ensure that the matter is dealt with transparently and in a manner that does not have the potential to undermine the confidence of the donating public.[25]
The Minister of Emergency Services had responsibility for the administration of the Ambulance Services Act 1992. The construction and replacement of ambulance stations was a regular aspect of annual financial activity reported in the annual budget papers in relation to SAAS.
The proposal to develop an ambulance station at McLaren Vale arose for consideration after the finalisation of the 2001-02 Budget. No mention is made of that project in the 2001-02 budget papers, notwithstanding that other station projects are recorded.
There are established processes to deal with new and unforeseen activities that arise between budgets and there is appropriation authority in place to facilitate funding within established limits.
Actions taken by the then Minister of Emergency Services were, in my opinion, pre‑emptive of the due processes in place for budget approvals. The Minister advised SAAS in August 2001 of his intention to ‘bid’ for additional crew staff at the next budget bi-laterals. The budget bi-lateral process at the relevant time was conducted in two phases. A preliminary information session was held before Christmas each year and finalisation of the process occurred in the period March to May in the next year.
Mr Brokenshire does not agree that his decision was pre-emptive of the budget process as he had every expectation and confidence that the long term funding for the McLaren Vale Ambulance Station would be provided. Mr Brokenshire stated:
My confidence in relation to the long-term funding was based on my knowledge of the urgent need for the station, of the ongoing priorities of the Government of which I was a member and also the support of the SAAS Board and the objective evidence which supported the project.
Notwithstanding the view expressed by Mr Brokenshire, for the reasons stated in this Report, I remain of the view that the approval to use sponsorship monies and the subsequent announcement of the McLaren Vale Ambulance Station was pre-emptive of the budget process.
In August 2001 the Minister approved funds to meet the operating costs of the new station in 2001-02. It was clearly anticipated that the station would be built and operating before the end of the 2001-02 year and for this to occur, development and construction of the new station would have coincided with the timing of the budget bi‑laterals.
The Minister also attended a site launch with the then Premier for the new ambulance station in October 2001. Making a public announcement before the bi-laterals process had commenced would, for practical purposes, have substantially reduced the likelihood of the funding not being approved.[26]
In this case, in my opinion, the matter should have been dealt with through Cabinet and the Treasurer. The estimated ongoing cost to the Government of the new station was $630000 per year in 2002-03 dollar terms. If the long term funding commitments associated with the proposed ambulance station were consistent with the Government’s budget priorities, funding would have been approved and an allowance built into the forward estimates process before commencement of the budget bi-laterals for the 2002‑03 Budget. Payment could then have been lawfully made from the Consolidated Account. The entire process would also then have had the necessary qualities of transparency, proper process, authority, and accountability.
This would also have been consistent with established practice that utilises Parliament’s approved flexibility in the appropriation process and would have avoided the failure to comply with the Public Finance and Audit Act 1987 requirements that occurred.
The sponsorship funds were used because of their convenience and ready availability in the circumstances. In my opinion, for the reasons stated in this Report, the funds were not available for this purpose but rather were required to be credited to the South Australian Police Department (SAPOL) Special Deposit Account and then credited to the Consolidated Account.
The treatment of the sponsorship funds for the State Rescue Helicopter Service should have been kept separate from the funding for the proposed ambulance station. There were long standing procedures in place for the application of the sponsorship funds and those procedures were consistent with the requirements of the law and with advice given to Cabinet over a number of years.
[1] It is also to be emphasised that no public monies have been misappropriated.
[2] Auditor-General’s Annual Report 2003-04, Part A, Memorandum to Parliament.
[3] The SAAS operational, funding, and administrative arrangements have now been brought within the jurisdiction of the Health Portfolio.
[4] It is to be emphasised that nothing in this Report is critical of any matters concerning the Adelaide Bank. The Bank has acted honourably in this matter and had no responsibility and/or knowledge of the failure within government to comply with the operative statutory requirements. The circumstances in this matter regarding the failure to comply with the internal legislative requirements within government is analogous to the comments in the Auditor-General’s 1995 Annual Report, Part A, page 65 regarding the matter of non-compliance with the State Supply Act 1985 referred to in that Report.
[5] The other events included the tabling of the Dawkins Task Force Report ‘Emergency Services Review’ in Parliament in May 2003.
[6] Section 4, Public Finance and Audit Act 1987.
[7] There is an interdependency that arises from the common factual situation that, in this matter, is relevant to both section 32 and section 36.
[8] Supplementary Report of the Auditor-General for the year ended 30 June 2002 — Report on the Process of Procurement of Magnetic Resonance Imaging Equipment by the North Western Adelaide Health Service, page 1.
[9] Case of Proclamations (1610) 12 Co Rep 74. The Minister for Emergency Services was the agent of the Crown and any former prerogative power in matters of this type to deal with public monies are now the subject of statutory control.
[10] The Eighth Report of the Committee of Public Accounts UK, ‘The Proper Conduct of Public Business’ (1994).
[11] Greiner v Independent Commission Against Corruption; Moore v Independent Commission Against Corruption (1992) New South Wales Court of Appeal.
[12] ibid; Mahoney JA.
[13] Bowen Committee Report (1979), ‘Public Duty and Private Interest’.
[14] Quotation taken from ‘Members of the Parliament: Law and Ethics’, Gerard Carney (2000), Prospect media at page 338. Evidence by P Finn to the New South Wales Parliamentary ICAC Committee 1992.
[15] See agreement dated 15 August 2001 between the Minister and the Adelaide Bank Ltd, refer Appendix 10.
[16] Mr Birch was at this time the Deputy Chief Executive of the Attorney-General’s Department with responsibility in matters associated with the Emergency Services portfolio.
[17] Had it not been for the threshold decision by the then Minister regarding the use of sponsorship funding to meet recurrent costs, the SAAS Board would not have proceeded with the McLaren Vale proposal in the 2001-02 financial year.
[18] It is necessary to again emphasise that in this matter the Minister was dealing with an independent Board. A Minister’s relationship with a Department of State is, of course, governed by different considerations.
[19] There was an element of risk as regards funding for recurrent costs beyond 2001-02 as the decision on this funding was to be discussed in the forthcoming bi-laterals. However, as stated in the text, the public involvement of the then Premier was a factor that could reasonably give comfort to the SAAS regarding the outcome of the forthcoming bi-laterals. At first sight, it may appear that the SAAS was taking a degree of risk regarding funding beyond 2001-02. On closer analysis of the facts this was not the case. The arrangements within SAAS was such that it did not advance its position in incurring binding obligations prior to being in a situation of being aware of the outcome of the first round of bi-laterals.
[20] Matters associated with this issue involve recruitment/employment processes and are outside of the scope of this Report.
[21] Mr Birch did advise SAAS that it had a responsibility to independently determine the viability of the need for an ambulance station at McLaren Vale.
[22] As noted above, the Minister in this matter was acting for and on behalf of the Crown and the payment of monies directly to the SAAS, an entity that was not the Crown, was unlawful.
[23] Refer to further comments on this matter in Part 5 ‘The Public Announcement of the Proposal for the Ambulance Station’ of this Report.
[24] See ‘Report of the Inquiry into the Australian Red Cross Bali Appeal’, August 2003, New South Wales Government.
[25] In my opinion, this should be the operative standard regardless of whether the matter is subsequently publicly made known or not. This is simply, in my respectful opinion, a matter of the standards that should inform the conduct that governs the operational affairs of government.
[26] ie the ‘embarrassment factor’ of having a Premier involved would be influential against Treasury opposition to the provision of funding for future recurrent expenditure.