The Hon. Rob Lucas MLC

The Hon

Rob Lucas MLC

Treasurer

Media Releases

Atkinson/Ashbourne/Clarke affair

Wednesday, 26 November 2008

Statement tabled in the Legislative Council on Wednesday 26 November 2008

ATKINSON/ASHBOURNE/CLARKE AFFAIR

Statement by members of the former Select Committee on the Atkinson/Ashbourne/Clarke Affair


The Select Committee was established by resolution of the Legislative Council on 7 July 2005. When the Second Session of the 51st Parliament was prorogued on 14 August 2008, the Select Committee was not reappointed.

The Select Committee had heard extensive evidence and collected much documentary evidence.

This Statement includes a Summary of Evidence prepared by the Research Officer to the Committee. It also includes the conclusions and recommendations of three of the five members who were members of the Select Committee from the time of its appointment until its dissolution.

A draft report prepared and supported by a minority of the Select Committee was leaked to the media on 23 July 2007. It purported to “clear” the Attorney-General.

As appears from the following pages, the conclusions of the so-called draft report are unsupportable. The evidence collected by the Select Committee leads overwhelmingly to the opposite conclusions.

Hon RI Lucas
Hon S Kanck
Hon RD Lawson

26 November 2008

MEMBERS’ STATEMENT ON THE ATKINSON/ASHBOURNE/CLARKE AFFAIR

Contents

1. Executive Summary of Conclusions 3
2. Committee membership 16
3. Terms of reference for the inquiry 17
4. Committee Procedure 20
5. Witnesses 21
6. Chronological Summary of Events 25
7. Summary of Evidence 29
8. Conclusions 48
9. Recommendations 63
10. List of Attachments 64



PART 1

EXECUTIVE SUMMARY OF CONCLUSIONS

1.1 Background

A Select Committee of the Legislative Council was established because the Rann government did not honour its promise to establish an independent, open judicial inquiry into the aptly-named “Atkinson/ Ashbourne/Clarke Affair”.

The affair encompasses the circumstances and events surrounding the discontinuance in 2002 by former Labor Deputy Leader, Ralph Clarke, of his defamation action against Attorney-General, Michael Atkinson. Clarke claims that Premier Rann’s Senior Adviser, Randall Ashbourne (acting on behalf of Atkinson), offered him appointments to two government boards if he (Clarke) discontinued the action. Clarke honoured his part of the bargain and discontinued the action but supervening events deprived him of his promised reward. Although Ashbourne was ultimately acquitted of a charge of abuse of public office and was summarily dismissed by Premier Rann, serious questions about the affair have remained unanswered.

A detailed chronology of the relevant events appears in Part 6 of this Report and it is assumed that the reader of this Summary is aware of those events.

1.2 Crucial findings based on evidence presented to the Select Committee

The evidence presented to the Select Committee (much of which has not been previously reported on), shows:

a. The claim made by Attorney-General Atkinson that he was not aware that Ralph Clarke was offered government board positions in connection with the finalisation of the defamation case is not credible. The Attorney-General’s claim is directly contradicted by his own staff and is inconsistent with the evidence of numerous witnesses.

b. Premier Rann severely compromised the criminal proceedings against Ashbourne. The Premier and other Ministers acted improperly by not promptly reporting matters to police and by ordering an in-house inquiry (“the McCann Inquiry”), into allegations that Ashbourne and Atkinson had abused their public office.

c. The McCann Inquiry was so grossly bungled that the jury in Ashbourne’s trial was prevented from hearing the full facts of the matter. Moreover, the seven month delay between the time the Premier became aware of the issues and the time when they were reported to the SAPOL Anti-Corruption Branch (“the ACB”) jeopardised and compromised both police investigations and the subsequent trial.

The Select Committee had the advantage of hearing evidence from Ralph Clarke, a vital witness whose testimony was central to the Affair but who, prior to the establishment of this Select Committee, had not had an opportunity to tell his side of the story.

The evidence demonstrates the urgent need for an Independent Commission against Corruption in South Australia.

1.3 Credibility of Atkinson’s denial about discussions on board positions

One of the crucial questions examined by the Select Committee was the issue of whether Attorney-General Atkinson was aware of discussions involving Clarke being offered positions on government boards and/or committees as part of a deal to abandon his legal action against Atkinson.

In particular, the critical question is whether this issue was discussed in early November 2002 at a meeting between Atkinson, Ashbourne and Karzis (Atkinson’s trusted political adviser, George Karzis).

Atkinson’s position has been that he was not aware and that when he met with Ashbourne there had been no mention of the question of board appointments. Atkinson’s evidence at the Ashbourne trial was unequivocal:

Q. “There was never any mention during any discussions you had with Randall Ashbourne about the litigation that suggested that as part of the resolution of litigation Ralph Clarke was to be offered some government board or position?”
A. “Yes, that’s correct .”

Significantly, Atkinson’s evidence is in conflict with the position of his own adviser, George Karzis, and also Randall Ashbourne’s evidence to the original McCann Inquiry (later changed at trial). Karzis in his statement to the Anti-Corruption Branch confirmed he attended the meeting and he heard Ashbourne state that Clarke wanted positions on government boards and/or committees as part of the settlement deal. The record of interview shows:

A. Karzis: “…what he said was, Ralph wants Boards and Committees to withdraw his action, Ralph wants a couple of Boards and Committees.
Q. Okay and you’re fairly certain of the events of that?
A. Yes.
Q. What was Mick’s response to that?
A. Am flabbergasted. I mean… ”

It is clear that, far from Atkinson being unaware of the fact as he claimed, Karzis confirms that Atkinson was aware and was " flabbergasted” by the request.

In sworn evidence at the Ashbourne trial, Karzis confirmed his earlier statements. He said:

“…Randall said that Ralph was willing to withdraw [the defamation action] but that he wanted some boards and committees.

"I [Karzis] said ‘Well, that’s got nothing to do with us’. [Atkinson] looked at me with a ‘what the hell?’ sort of expression on his face.”

Ashbourne told the McCann Inquiry he attended the meeting and that he told Atkinson about Clarke’s request for board appointments. In fact the record of interview describes Ashbourne’s recollection of Atkinson’s response to the request for board appointments:

A. Ashbourne: “Mick made it clear that he wouldn’t have Ralph anywhere near him but he would speak with others about areas where could use Ralph’s talents – not in legal – in areas of IR and jobs.
Q. Did the Attorney-General use his best endeavours?
A. Mick said he would chat with others. Mick said ‘I won’t have him anywhere near me’.”

So, this evidence from Karzis and Ashbourne, who were the two other persons at the meeting with Atkinson, directly contradicts the claim by Atkinson that there was no discussion about board appointments at the meeting.

Evidence given in a statement to the ACB by Cressida Wall, Chief of Staff to Treasurer Kevin Foley, also does not support the position of Atkinson on the issue of board appointments. Her statement makes it clear Ashbourne told her at a meeting with him about the settlement deal involving board positions and that Atkinson was aware of this:

Ashbourne: “As part of the settlement we have agreed to offer him some board memberships
Wall: “Does Mick know about this?
Ashbourne: Yes. Obviously the Boards couldn’t come from within the Attorney-General’s portfolio so they’ll have to be found elsewhere in Government. The Attorney-General is going to speak to his colleagues but as you know, he’s a bit vague so we need to something about it as well – can you get onto it and see what Kevin can offer – he would be suited to something in the jobs area given his background. Ralph would expect at least one [Board appointment] sooner rather than later.”

As outlined in the next section of this report the evidence given by Clarke to the Committee also does not support the position of Atkinson on the issue of Board appointments.

In addition the evidence given to this committee by Chris Schacht, Murray DeLaine, Gary Lockwood and Edith Pringle do not provide any support to Atkinson’s position. The following table summarises the evidence:

Witness - Position/Title - Evidence
Randall Ashbourne - Former Ministerial Adviser to Premier Rann - Told the McCann Inquiry that he had discussed with Atkinson the issue of possible board appointments for Clarke

(Subsequently changed this evidence at the trial when the McCann Inquiry evidence was ruled inadmissible).

Ralph Clarke - Former Labor MP - In Oct/Nov 2002, had series of meetings and discussions with Randall Ashbourne about settling the defamation case including the offer of 2 board positions – Ashbourne made it clear throughout discussions that Atkinson was aware of, and had approved of all the negotiations

George Karzis - Former Ministerial Adviser to Attorney-General Atkinson - In Nov 2002, he was present at a meeting with Atkinson and Ashbourne at which Ashbourne stated Clarke wanted board positions as part of the settlement

Cressida Wall - Chief of Staff for Treasurer Kevin Foley in 2002 - Told Police that she had meeting with Ashbourne on 20 Nov 2002 where he told her that the Atkinson/Clarke case had been settled and that part of the settlement was some board positions and that Atkinson was aware of the offers of board positions

Chris Schacht - Former Labor Party Senator - Supports Ralph Clarke’s evidence. In Nov 2002, Ralph Clarke rang on a number of occasions outlining details of his discussions with Ashbourne about a possible deal with Atkinson

Murray DeLaine - Former Labor Party MP - Supports Ralph Clarke’s evidence. In Nov 2002, Ralph Clarke rang on 3 occasions outlining details of his discussions with Ashbourne about a possible deal with Atkinson

Gary Lockwood - Staff member Robyn Geraghty MP / Frances Bedford MP - Member Labor Party; supports Ralph Clarke’s evidence. In Oct/Nov 2002, he was present when Ralph Clarke took a number of phone calls from Randall Ashbourne – Ralph Clarke told him Ashbourne was acting as go-between for Atkinson and Clarke over the deal involving Clarke withdrawing his legal action and Clarke receiving board appointments in return

Edith Pringle - Former Labor Party member, staff member for Frances Bedford MP, and de facto partner of Ralph Clarke - She had agreed to a request from Atkinson to be a witness in his court case with Ralph Clarke. On Nov 15 2002, she rang Atkinson and Atkinson told her she was no longer needed as a deal had been done to stop the case and that the deal involved Atkinson not paying any money to Clarke because Clarke would be given some board positions

In summary, the only support for Atkinson’s position materialised when Ashbourne was able to change his evidence at trial.

Moreover, Atkinson’s glib explanation of the reason for him agreeing to the discontinuance of the action (ie, because he thought that he would win!) should not be accepted in light of Atkinson’s refusal to allow the ACB to inspect documents relating to the settlement and discontinuance on the ground of legal professional privilege.

The explosive reaction of Deputy Premier Foley when Cressida Wall reported what Ashbourne had told her about the offer to Clarke is powerful evidence that Ashbourne had not merely provided her with trivial, benign information. After hearing it, Foley said that Atkinson should stand down immediately. Cressida Wall was “a person of credibility in a responsible position” according to the Crown Solicitor. Whilst it was convenient for the Premier and others to later downplay Wall’s revelations and Foley’s response to them, the only fair inference is that Foley’s reaction was prompted by the revelation that Ashbourne had, indeed, been involved in discussions which were highly improper.

The overwhelming weight of evidence outlined above makes it abundantly clear that Atkinson was aware that board and/or committee positions had been offered to Clarke as part of a settlement deal for his private defamation action with Clarke. Atkinson’s claim therefore is not credible and should be rejected.

1.4 Ralph Clarke’s evidence to the Select Committee

Clarke was not interviewed during the McCann Inquiry. When, some months later, the ACB commenced their investigation, he declined to be interviewed. This was understandable: if Ashbourne’s offer to Clarke had amounted to criminal conduct, Clarke’s acceptance of it could have placed him in jeopardy. Clarke was not called as a witness at the trial (by either the prosecution or the defence).

Clarke’s evidence is of such crucial importance that its essence is set out (in his own words) at this early stage of this Report.

Clarke told the Select Committee that, on 28 October 2002, he met with Ashbourne at Lena’s Café. Ashbourne told Clarke that his pursuit of the defamation action was an impediment to Clarke and his followers rejoining the ALP. Clarke said:

“Randall … asked what I was going to do about the legal action I had against the Attorney. I informed him I was intending to proceed with it. Randall said that if the legal action persisted there were dangers for both Mick [Atkinson] and myself …"

"He [Ashbourne]… said that he believed that I had still a lot to offer the community and that it was possible that I could find myself being given the opportunity of serving in different capacities and also find my way back as a member of the [Labor] Party.

"However he believed that these opportunities would be unlikely to be available if I persisted in my litigation against the Attorney.



"We parted on the basis that he would have discussions with the Attorney on these matters”.

A short time later, there was a further meeting between Clarke and Ashbourne. According to Clarke’s evidence:

“… we discussed where we had left off on the 28th October. He advised me that he had had a discussion with the Attorney-General on the matters we had discussed and that the Attorney had looked favourably on an honourable settlement between us."

“It was during this discussion that Randall raised with me the possibility of my being offered Board positions in the future and my re-admittance to the Labor Party …



“In all my discussions with Randall from the 28th October 2002 and thereafter I dealt with him on the basis that I believed him to be, and still believe him to have been, an emissary or conduit for the Attorney...

"The second meeting we left on the basis that an accommodation could possibly be reached between the Attorney and myself on the basis that I would have the opportunity of serving on two State Government Boards where my skill sets could best be utilized and an understanding that if I, or any of my supporters wished to rejoin the Labor Party or participate in its affairs, they would not be prevented from doing so by the Attorney.”

Clarke described a further meeting and a telephone conversation between himself and Ashbourne as follows:

“There was a final meeting … where I recall handing Randall a handwritten note summarising the previous discussions between Randall representing, as I believed him to be, the Attorney-General and myself. It included two Board positions being offered to me in the future and the non-opposition of the Attorney to the re-admittance of either myself and/or other supporters of mine to the ALP and no discrimination against my supporters ….It also contained a request for the Attorney to meet my legal costs if I withdrew my action … This meeting concluded with Randall saying that he would ‘get back to me after he checked these points with Mick.’

"A day or so later, Randall telephoned me to say that ‘Mick had agreed to all the points on my notepaper, except he would not pay my legal costs of $15,000, the two board positions would suffice.’ After considering the matter further … I telephoned Randall and said that I would accept Mick’s final position and would instruct my solicitor to withdraw my defamation proceedings.”

The defamation action was discontinued by mutual consent on 16 November 2002.

The attendance of Clarke before the Select Committee and his frank testimony may be contrasted with the non-attendance and non-cooperation of the Premier and Attorney-General Atkinson. One person who could have denied the truth of Clarke’s statements was Ashbourne. He chose not to appear before the Select Committee or to provide information. However, Clarke’s evidence is consistent with Ashbourne’s original admissions to McCann and it is also consistent with the evidence of Atkinson’s adviser, George Karzis. Both of these matters are referred to in some detail below.

We were impressed by the frank and cogent manner in which Clarke gave his evidence which was uncontradicted.

Atkinson refused to allow the ACB to inspect documents relating to the settlement and discontinuance on the ground of legal professional privilege.

1.5 Edith Pringle’s evidence to the Select Committee

Pringle told the Committee at the outset of her evidence that “I know Michael Atkinson quite well” . In relation to domestic violence charges against Clarke, a precursor to the litigation Clarke took against Atkinson, Pringle stated: “When the issue of criminal action was first raised, Mike Rann had put me under considerable pressure to assist in the withdrawal of the charges, and Michael Atkinson supported that process.”

Her evidence to the Committee was that she had been contacted by Atkinson who asked her to give evidence in court in the case against Clarke. She created a clear impression that she had been in close contact with Atkinson, to the extent that he had given her a confidential phone number which provided direct access to his Ministerial office.

“I spoke to Michael Atkinson on this number on 15 November 2002. I inquired about when I would be required to testify. Michael informed me that the case was not going ahead as a deal had been done. I recall that Michael seemed proud of the fact that he did not ‘have to pay Ralph Clarke’ one penny.”

Pringle went on to say:

“I asked Michael Atkinson about the nature of the deal and he told me that it involved board positions for Ralph. When I asked him which boards were involved, he said that Workcover would probably be one. I expressed my disapproval to Michael in fairly robust terms and his response to me was that it was out of his hands. He said the instruction to settle had come from higher up.”

On questioning, Pringle elaborated “that the impression that I was left with was that this had come as a directive from the Premier at arm’s length”, an understanding that is consistent with the similar impression of Ralph Clarke that Randall Ashbourne was acting as an emissary.

Pringle also provided photocopies of her phone records to the Committee to verify her claim of speaking to Atkinson using the direct number.

Despite the contempt with which Pringle held Clarke, her evidence corroborates Clarke’s understanding of undertakings given to him by the Attorney-General.

1.6 The McCann Inquiry

On 20 November 2002, four days after the discontinuance, Premier Rann appointed Warren McCann, the Chief Executive of the Premier’s own department to conduct an inquiry. Mr McCann interviewed Randall Ashbourne who made certain admissions about his dealings with Atkinson. McCann also interviewed Atkinson but he did not interview Clarke. Ashbourne admitted to McCann that he had discussed with Atkinson the issue of possible board appointments for Ralph Clarke. This admission was inconsistent with the stance of Atkinson who said that “…the first [he] knew of the idea of a board of committee position for Ralph Clarke” was at a meeting in the Premier’s office on 20 November 2002. This conflict of evidence was never referred to in the McCann Inquiry, let alone resolved.

The Report of the McCann Inquiry is Annexure 1 to this Report.

It will become apparent that Crown Solicitor, Mike Walter QC, was overly polite when he described the McCann Inquiry as “an inept investigation” .

1.7 Effect of the bungled McCann Inquiry

At a preliminary stage of Ashbourne’s subsequent trial on a charge of abuse of public office (the so-called “voir dire”), the court was required to rule whether Ashbourne’s record of interview with McCann could be presented in evidence. In the voir dire, Ashbourne (in the absence of the jury) confirmed on oath that the record of interview was accurate. However, the court ruled that the record could not be presented in evidence because McCann had failed to warn Ashbourne that he was not legally obliged to answer any questions.

The forensic effect of McCann’s bungle was crucial. When Ashbourne came to give evidence in the presence of the jury he was able to change his position without fear of contradiction. He was able to tell the jury that he had never had a discussion with either Clarke or Atkinson about Board positions being offered to Clarke.

Details of the effect of McCann’s blunder were provided to the Select Committee by the Office of the Director of Public Prosecutions (“ODPP”): see letter dated 28 September 2005 from the ODPP to the Select Committee.

1.8 Deficiencies of the McCann Inquiry

These were not limited to the blunder just referred to. McCann accepted Atkinson’s bland assertions that the question of board appointments for Clarke was “never canvassed”. But he did not even contact Clarke, let alone ask him for his version of events. Nor did McCann interview Atkinson’s adviser, George Karzis. If he had done so, McCann would have had an entirely different picture from that presented by Atkinson.

The finding of the McCann Inquiry that there “were no reasonable grounds” for believing that the conduct of either Atkinson or Ashbourne was improper or breached relevant Codes of Conduct is not credible. Those findings were based upon evidence which was incomplete and which was not properly tested. The evidence which was collected by the Select Committee (including the crucial testimony of Ralph Clarke) shows that the actions of both Atkinson and Ashbourne were highly improper.

The McCann Inquiry itself was flawed in that it did not thoroughly examine or test the evidence which it gathered and it failed to interview all relevant witnesses or gather all relevant material.

McCann obtained legal advice from Melbourne solicitors, Deacons. That advice highlighted the inadequacy of the evidence collected by McCann and included the following under the heading “Outstanding Issues”:

“The investigation has been conducted with urgency and expedition. A much more thorough (and time consuming) investigation would no doubt resolve some outstanding issues which emerge from a reading of the material. For example, there is a difference between the evidence given by the Attorney-General and that of Ashbourne on the extent to which the Attorney-General knew that Clarke wanted or expected or should have a Government appointment … ” (emphasis added)

Despite these serious uncertainties, McCann concluded that “further investigation” should not occur because it would be “expensive and … unwarranted”. This conclusion was flawed and wrong. It presumed (wrongly, as later emerged) that further inquiries would prove fruitless. Moreover, McCann’s refusal to conduct further investigations on the ground that “it would be expensive” was wrong in principle and inconsistent with the most elementary principles of good public administration.

Finally, the Select Committee heard evidence from the Crown Solicitor that the police investigation was seriously compromised by the delay of seven months between the time when the McCann Inquiry began and when the matters were finally reported to the ACB.

1.9 Premier Rann’s role

When he first became aware of the allegations, Premier Rann should have immediately reported the matter to the ACB. Had he done so, the initial interview with Ashbourne would not have been bungled and police would have carried out a thorough investigation at a time when issues were fresh in the minds of witnesses.

We are critical of Premier Rann for deliberately avoiding the ACB by commissioning an in-house, secret ‘inquiry’ to avoid scrutiny. Moreover, his actions in this case are at odds with his public utterances. In Parliament, he said:

“…when you get information given to you, you give it to the police, that is exactly what I do when I am given information …”

The Premier’s conduct during the trial was also improper. This topic is canvassed below.

1.10 Ashbourne’s trial

We are mindful that the terms of reference of this inquiry preclude the Select Committee from making any finding of criminal guilt. We have not attempted to do so. We accept that the jury acquitted Ashbourne and the Select Committee did not seek to re-try him.

Moreover, the jury’s verdict throws no light on the question of Ministerial responsibility. The jury did not hear the full evidence and it was not called upon to accept or reject Atkinson’s specious claim that he was not aware that Clarke was offered government positions.

The contest at the trial was whether the prosecution could prove beyond reasonable doubt that Ashbourne had abused his public office by offering Board positions to Clarke. Given that Clarke was never asked by McCann or by the ACB or by the Court to say what had happened between them and that Ashbourne’s record of interview with McCann was ruled inadmissible, the verdict was hardly surprising.

The Premier and others claimed that the jury’s acquittal occurred in “record time”. This falsehood was exposed by the DPP. The government-sponsored suggestion that Ashbourne never had a case to answer was patent nonsense. A magistrate ruled that he did have a case to answer; so did Judge David.

There are two disturbing aspects of the trial which demand mention in this summary.

1.11 Premier’s Office interference in trial process

The first matter concerns Nick Alexandrides, the Premier’s legal adviser and a member of the Premier’s political staff. During the course of the trial, Alexandrides telephoned a member of the prosecution team (Tim Heffernan) about the forthcoming Premier’s appearance as a witness. Alexandrides was abusive and threatening.

The following extract gives the flavour of the Alexandrides’ conversation. He said to Heffernan:

“… this is a fucking political prosecution and you know it. I will fucking go to the Conduct Board … if we fail to get the Premier latitude on the voir dire ruling.”

The substance of the call was reported to the DPP who “took it as an attempt to improperly influence the conduct of the prosecution.”

We agree with the evidence of Mr Pallaras that Alexandrides’ intervention was “inappropriate and improper” and “outrageous”.

1.12 Premier ignores judge’s ruling

The second matter of concern is the Premier’s own behaviour when he gave evidence. As already mentioned, the judge had ruled that the McCann Report was inadmissible. Further, the judge had specifically ordered that witnesses were not to mention the Report or the existence of the inquiry. This ruling did not suit the Premier’s political purposes as was evident from the Alexandrides intervention described in the preceding paragraph. The Premier wanted to use his appearance as a witness to advance his own political cause by saying that he had promptly established an inquiry, that Ashbourne had been cleared, and that he had acted on McCann’s report. However, the judge’s ruling torpedoed the plan.

When the Premier appeared as a witness, he deliberately disobeyed the ruling and told the jury what he well knew the judge had banned . The Premier later boasted that he had done so. He told Parliament: “I will not be gagged by anyone.” This conduct was deplorable. It is clear that neither the Premier, nor his office, had any respect for the DPP or for due legal process.

The government claimed that Ashbourne’s acquittal vindicated its actions. Nothing could be further from the truth. The government also adopted a calculated strategy of denigrating the Office of the DPP and Mr Pallaras himself.

1.13 Government attacks on the DPP

In May 2005, shortly before the Ashbourne trial was due to commence, DPP Stephen Pallaras QC claimed publicly that the ODPP was underfunded and needed more prosecutors. This was not a new claim. It had been made by Mr Pallaras’s predecessor. In response to this claim, Treasurer Foley telephoned Pallaras and made “intimidatory” remarks including the threat that, if the DPP were to persist, “he would be in jeopardy of having its funds reduced.”

Pallaras publicly objected to Foley’s comments and Foley responded by making a Ministerial Statement containing the inflammatory accusations that Pallaras was “playing politics”, “picking a fight with the government”, “posturing etc etc.”

Next, during the course of the Ashbourne trial, the DPP endeavoured to convey to the Attorney-General his concerns about the improper action of Alexandrides described in paragraph 1.11 above . The fact that he had done so was leaked to Alexandrides himself and, later, the contents of the DPP’s “private and confidential” memo to Atkinson was leaked by the government so that it could put its “spin” on the episode, viz, that it was Pallaras himself who had leaked the matter. Needless to say, Pallaras reacted strongly to this false slur upon his integrity.

The process of denigrating the DPP continued after Ashbourne’s acquittal. On 5 July 2005, the Attorney-General made a Ministerial Statement to the effect that the DPP sought to have the same status and salary as a Supreme Court judge, similar to his interstate counterparts. The Attorney-General omitted to mention that Pallaras’s predecessor had made a similar request. Atkinson’s statement made gratuitous references to the emoluments and the type of vehicle to be provided to judges. He said the DPP was seeking a 45% pay rise to $406,268. Needless to say, the attack received the blanket media coverage which the government had hoped for. The obvious purpose was to undermine the public standing of Pallaras by portraying him as self-interested and out of touch with the community.

Finally, during the course of Pallaras’s evidence to the Select Committee, the Chairman and other Labor members adopted an aggressive stance against him. This was not surprising because there is no doubt that the Premier and others in the government were irritated by the decision of the Office of the DPP to lay criminal charges against Ashbourne. A sustained campaign of retaliation was undertaken, much of it against Pallaras personally, despite the fact that he had not been appointed when the initial decision to prosecute was made.

We conclude that the actions of the Premier and government Ministers towards the DPP were a despicable attempt to undermine and demoralise the DPP and his office for their own political cause, viz, that McCann’s “whitewash” of the government was legitimate.

1.14 Need for an ICAC in South Australia

The evidence demonstrates the need for an independent commission against corruption in South Australia and it explains the Rann government’s opposition to the establishment of such a commission.

When Ashbourne was first charged, the Premier had promised that a judicial inquiry would be held after the criminal proceedings concluded. That inquiry was never established. The evidence uncovered in the Select Committee shows clearly why the government refused to hold the promised inquiry.

Despite the failure of government Ministers to appear before it, the Select Committee unearthed evidence which the government sought to suppress. A government-inspired attempt to mislead the public by “ leaking” a so-called draft Committee report in July 2007 was only the last of many efforts to divert attention from the true facts.

1.15 The Ministerial Code of Conduct

The issues examined in the Select Committee were far wider than those at Ashbourne’s trial. In particular, we were concerned with the propriety of the behaviour of Ministers and their staff. Although there may have been insufficient evidence for the jury to convict Ashbourne at his trial, the evidence received by the Select Committee demonstrates clearly that Attorney-General Atkinson was aware of Ashbourne’s deal with Clarke and that he gave it his approval. Atkinson’s only caveat appears to be that his fingerprints were not on the deal.

Clause 2.4 of the Ministerial Code of Conduct implemented by the Rann government in May 2002 provides:

“Ministers are expected to act honestly, diligently and with propriety in the performance of their public duties and functions”

The conclusion of the McCann Inquiry that Atkinson’s conduct did not infringe the Code of Conduct is laughable. If (contrary to our view), McCann’s conclusion is valid, the Ministerial Code of Conduct is not worth the paper on which it is written.

Atkinson’s conduct clearly breached clause 2.4 of the Ministerial Code of Conduct.

Atkinson was aware that Ashbourne was negotiating a highly improper deal which would have benefited Atkinson by removing the possibility of an adverse and possibly embarrassing result in the defamation action. His behaviour was inconsistent with proper standards of conduct (for a Minister). By refusing to repudiate Ashbourne’s dealing with Clarke, he endorsed the same.


PART 2

COMMITTEE MEMBERSHIP

From its appointment until the State election on 18 March 2006, the membership of the Select Committee was:

The Hon P Holloway MLC (Chairperson)
The Hon SM Kanck MLC
The Hon RD Lawson MLC
The Hon RI Lucas MLC
The Hon RK Sneath MLC

After the election, the Select Committee was reconstituted with the following membership:

The Hon RP Wortley MLC (Chairperson)
The Hon BV Finnigan MLC
The Hon SM Kanck MLC
The Hon RD Lawson MLC
The Hon RI Lucas MLC

The Select Committee was assisted by Mr Trevor Blowes, Secretary and Ms Gail Adams, Research Officer.


PART 3

TERMS OF REFERENCE

The terms of reference of the Select Committee were to inquire into and report on the following matters:

1. Whether the Premier or any Minister, ministerial adviser or public servant participated in any activity or discussion concerning:

a. The possible appointment of Mr Ralph Clarke to a government board or position; or

b. The means of facilitating recovery by Mr Clarke of costs incurred by him in connection with a defamation action between Mr Clarke and Attorney General Atkinson.

(The activity and discussions and events surrounding them are referred to in these terms as “the issues”.)

2. If so, the content and nature of such activity or discussions.

3. Whether the Premier or any Minister or ministerial adviser authorised any such discussions or whether the Premier or any Minister or ministerial adviser was aware of the discussions at the time they were occurring or subsequently.

4. Whether the conduct (including acts of commission or omission) of the Premier or any Minister or ministerial adviser or public servant contravened any law or Code of Conduct; or whether such conduct was improper or failed to comply with appropriate standards of probity and integrity.

5. Whether the Premier or any Minister or ministerial adviser made any statement in relation to the issues which was misleading, inaccurate or dishonest in any material particular.

6. The failure of the Premier, the Deputy Premier, the Attorney General and the, then, Minister for Police to report the issue in the first instance to the Anti-Corruption Branch of the SA Police.

7. Whether the actions taken by the Premier and Ministers in relation to the issues were appropriate and consistent with the proper standards of probity and public administration and, in particular:

a. why no public disclosure of the issues was made until June 2003;

b. why Mr Randall Ashbourne was reprimanded in December 2002 and whether that action was appropriate;

c. whether the appointment of Mr Warren McCann to investigate the issues was appropriate;

d. whether actions taken in response to the report prepared by Mr McCann were appropriate.

8. What processes and investigations the Auditor General undertook and whether the Auditor General was furnished with adequate and appropriate material upon which to base the conclusions reflected in his letter dated 20 December 2002 to the Premier.

9. Whether adequate steps were taken by Mr McCann, the SA Police and the Office of the Director of Public Prosecutions to obtain from Mr Clarke information which was relevant to the issues.

10. Whether the processes undertaken in response to the issues up to and including the provision of the report prepared by Mr McCann were reasonable and appropriate in the circumstances.

11. Whether there were any material deficiencies in the manner in which Mr McCann conducted his investigation of the issues.

12. Whether it would have been appropriate to have made public the report prepared by Mr McCann.

13. The matters investigated and all the evidence and submissions obtained by and any recommendations made by the Anti-Corruption Branch of the SA Police.

14. Whether Mr Ashbourne, during the course of his ordinary employment, engaged in any (and, if so, what) activity or discussions to advance personal interests of the Attorney General and, if so, whether any Minister had knowledge of, or authorised, such activity or discussion.

15. Whether Mr Ashbourne undertook any and, if so, what actions to “rehabilitate” Mr Clarke, or the former Member for Price, Mr Murray DeLaine, or any other person into the Australian Labor Party and, if so, whether such actions were undertaken with the knowledge, authority or approval of the Premier or any Minister.

16. The propriety of the Attorney General contacting journalists covering the Ashbourne case in the District Court, during the trial, and the nature of those conversations.

17. With reference to the contents of the statement issued on 1 July 2005 by the Director of Public Prosecutions, Mr Stephen Pallaras, QC:

a. what was the substance of the “complaint about the conduct of the Premier’s legal advisor, Mr Alexandrides”;

b. what was the substance of the “telephone call made [by Mr Alexandrides] to the prosecutor involved in the Ashbourne case”;

c. what were the “serious issues of inappropriate conduct” relating to Mr Alexandrides;

d. whether the responses of the Premier, the Attorney General or any Minister or Mr Alexandrides or any other person to the issues mentioned in the Director of Public Prosecutions’ statement were appropriate and timely; and

e. whether any person made any statement concerning the issues referred to in the Director of Public Prosecutions’ statement which was misleading, inaccurate or dishonest in any material particular.

18. Whether it would be appropriate in future to refer any credible allegation of improper conduct on the part of a Minister or ministerial adviser (that has not already been referred to the police) to the Solicitor General in the first instance for investigation and advice.

19. If the reference of such an allegation to the Solicitor General would not be appropriate (in general or in a particular case) or would not be possible because the Solicitor General’s absence or for some other reason, who would be an alternative person to whom it would be appropriate to refer such an allegation in the first instance for investigation and advice.

20. Whether Mr Alexandrides assisted in framing the Terms of Reference for the Inquiry proposed by the Government in the resolution of the House of Assembly passed on 5 July 2005.

21. What action should be taken in relation to any of the matters arising out of the consideration by the Inquiry of these terms of reference.

The Select Committee must not, in the course of its inquiry or Report, purport to make any finding of criminal or civil liability.


PART 4

COMMITTEE PROCEDURE

The Committee met for the first time on Thursday, 7 July 2005. At that meeting it was resolved that a summary terms of reference be prepared for inclusion in an advertisement and that letters together with the terms of reference be sent to the following persons requesting them to appear before the Committee:

The Hon. The Premier
The Hon. Deputy Premier and Treasurer
The Hon. The Attorney General
The Hon. The Minister for Infrastructure
Mr. W. McCann, Chief Executive, Department of the Premier and Cabinet
The Chief of the Anti-Corruption Branch, South Australian Police
Mr Stephen Pallaras, Director of Public Prosecutions
Mr. Randall Ashbourne, former Senior Ministerial Adviser to the Premier
Mr. Ralph Clarke, former Member for Enfield
Mr. Nick Alexandrides, Senior Legal Adviser to the Premier
Mr. George Karzis, Ministerial Adviser to the Attorney General
Ms. Cressida Wall, former Chief of Staff to the Deputy Premier/Treasurer
Ms. Sally Glover, former Senior Legal Counsel to the Premier.

At a subsequent meeting, Friday 15 July 2005, it was resolved that the Committee exercise the authority granted by the Legislative Council and make available for public disclosure all written and oral submissions received and that the media and public be admitted to all meetings of the Committee when evidence was being submitted.


PART 5

WITNESSES

The following persons appeared before the Committee and presented evidence:

15 and 29 July 2005 - Mr Stephen Pallaras QC, Director of Public Prosecutions and Ms Pauline Barnett, Managing Solicitor, Office of the Director of Public Prosecutions
9 August 2005 - Mr Warren McCann, Chief Executive, Department of the Premier and Cabinet
19 August 2005 - Superintendent Peter Simons, South Australian Police
26 August 2005 - Mr Ken McPherson, Auditor-General and Mr Ian McGlen, Director of Audits
8 September 2005 - Mr Mike Walter QC, former Crown Solicitor
22 September 2005 - Ms Wendy Abraham QC and Ms Geraldine Davison, Managing Prosecutor, Office of the Director of Public Prosecutions
19 October 2005 - Mr Gary Lockwood, Australian Labor Party electorate staffer/former staffer Torrens, Florey and Enfield
4 November 2005 - Mr Ralph Clarke, former Australian Labor Party Member for Enfield
24 November 2005 - Ms Edith Pringle, former Australian Labor Party electorate staffer
1 December 2005 - Mr George Karzis, Ministerial Advisor to the Attorney-General
12 January 2006 - Mr Murray DeLaine, former Member for Price and Mr Chris Schacht, former Senator

The following persons refused to give evidence to the Select Committee:

The Hon Mike Rann
The Hon Pat Conlon
The Hon Kevin Foley
The Hon Michael Atkinson
Mr Randall Ashbourne
Mr Nick Alexandrides
Ms Cressida Wall
Ms Sally Glover

However, the Select Committee did receive into evidence statements made by each of the above persons to investigating police and the Committee also received the transcript of the evidence given by each of them at the trial of Ashbourne in June 2005.

The roles of some of the above-mentioned witnesses and other persons mentioned in evidence is explained as follows:

Ms Abraham QC served as Associate Director to the former Director of Public Prosecutions from mid 1995 to May 2004. During 2003 and 2004, she acted as Director during the following periods: 18 August-22 September 2003; 26 September 2003; 16 October-17 October 2003; 3 November-5 November 2003; 17 and 18 March 2004; and 19 April-23 April 2004.

Messrs Ron Beazley (former Victorian Crown Solicitor) and James Judd QC, Deacons, Victoria provided advice to the McCann Inquiry.

Mr Warren McCann, Chief Executive, Department of the Premier and Cabinet. At the request of Premier Rann, Mr McCann conducted an inquiry and prepared a report dated 2 December 2002 “the McCann Inquiry”).

Mr Stephen Pallaras QC commenced as the Director of Public Prosecutions 26 April 2005.

Superintendent Peter Simons, seconded to the Anti-Corruption Branch, South Australian Police, to head the inquiry, in July 2003. The Anti-Corruption Branch operations inspector with whom he worked was Detective Inspector Rick Perry.

Mr Mike Walter QC was the South Australian Crown Solicitor 1996 - August 2004.

Other evidence received by the Select Committee

In addition to the oral evidence given by witnesses, the Select Committee received much written material. Three substantial folders of documents collected by the Anti- Corruption Branch of the SA Police were invaluable. Those documents include numerous witness statements and Declarations obtained during the police investigations, correspondence and other material.

Of equal value was the transcript of Ashbourne’s trial on a charge of abuse of public office. That transcript included evidence given under oath at the trial and in the voir dire hearing. The transcript contained (inter alia) the evidence of the following witnesses:

Hon Mike Rann
Hon Kevin Foley
The Hon Michael Atkinson
Randall Ashbourne
Warren McCann
George Karzis
Cressida Wall
Sally Glover

The following table identifies the Term of Reference to which the evidence of each witness was principally directed.

Terms of reference 1 - 3:
Ms Geraldine Davidson, Managing Prosecutor, Office of the Director of Public Prosecutions
Mr Michael Atkinson, Attorney General (Statement of Witness, 5 December 2003)
Mr Ralph Clarke, former Member for Enfield
Mr Gary Lockwood, Australian Labor Party electorate staffer
Ms Edith Pringle, former Australian Labor Party electorate staffer
Mr George Karzis, Ministerial Adviser to the Attorney General
Mr Mike Rann, Premier (Statement of Witness, 9 December 2003)

Term of reference 4:
Mr Warren McCann, Chief Executive, Department of the Premier and Cabinet
Mr Ken McPherson, Auditor General
Mr Mike Walter QC, former Crown Solicitor
Mr Gary Lockwood, Australian Labor Party electorate staffer

Term of reference 5:
Mr George Karzis, Ministerial Adviser to the Attorney General
Ms Geraldine Davidson, Managing Prosecutor, Office of the Director of Public Prosecutions
Mr Michael Atkinson, Attorney General (Statement of Witness, 5 December 2003)
Mr Kevin Foley, Deputy Premier (Statement of Witness, 24 November 2003)

Terms of reference 6 – 7:
Mr Mike Walter QC, former Crown Solicitor
Mr Mike Rann, Premier (Statement of Witness, 9 December 2003)
Ms Wendy Abraham QC

Term of reference 8:
Mr Ken McPherson, Auditor General
Ms Wendy Abraham QC
Mr Mike Walter QC, former Crown Solicitor

Term of reference 9:
Mr Warren McCann, Chief Executive, Department of the Premier and Cabinet
Superintendent Peter Simons, South Australian Police
Ms Wendy Abraham QC
Ms Geraldine Davidson, Managing Prosecutor, Office of the Director of Public Prosecutions

Term of reference 10:
Ms Sally Glover, former Senior Legal Counsel to the Premier (statement of Witness, 9 December 2003)
Mr Warren McCann, Chief Executive, Department of the Premier and Cabinet
Mr Mike Walter QC, former Crown Solicitor
Ms Wendy Abraham QC

Term of reference 11:
Mr Warren McCann, Chief Executive, Department of the Premier and Cabinet
Mr George Karzis, Ministerial Adviser to the Attorney General
Superintendent Peter Simons, South Australian Police

Term of reference 12:
Mr Warren McCann, Chief Executive, Department of the Premier and Cabinet
Mr Ken McPherson, Auditor General
Mr Mike Walter QC, former Crown Solicitor

Term of reference 13:
Superintendent Peter Simons, South Australian Police

Terms of reference 14 - 15:
Mr Ralph Clarke, former Member for Enfield
Mr Michael Atkinson, Attorney General (Statement of Witness, 5 December 2003)
Ms Geraldine Davidson, Managing Prosecutor, Office of the Director of Public Prosecutions
Mr George Karzis, Ministerial Adviser to the Attorney General
Mr Mike Rann, Premier (Statement of Witness, 9 December 2003)

Term of reference 16:
Mr Stephen Pallaras, Director of Public Prosecutions

Term of reference 17:
Mr Stephen Pallaras, Director of Public Prosecutions

Term of reference 18:
Mr Mike Rann, Premier (Statement of Witness, 9 December 2003)

Term of reference 21:
Mr Warren McCann, Chief Executive, Department of the Premier and Cabinet
Mr Stephen Pallaras, Director of Public Prosecutions


PART 6

CHRONOLOGICAL SUMMARY OF EVENTS

The following chronology provides a list of the major events in the Atkinson/Ashbourne/Clarke Affair and briefly describes the context of those events based on the evidence collected by the Select Committee.

1997-2000 - The Clarke/Pringle Affair

Although the principal events which are the subject of this inquiry occurred in 2002-3, it is necessary to refer to a course of events which began in 1997. In that year, Ralph Clarke, the then ALP Member for Ross Smith, was charged with 3 counts of assault of his domestic partner, Edith Pringle. Hon Mike Rann, then Leader of the Opposition, suggested to Ms Pringle that she should drop the charges and, Michael Atkinson, then Shadow Attorney-General, also spoke to Pringle about withdrawing the charges. Atkinson offered to act as a “go-between” and get someone to drive Pringle to the Holden Hill Police Station to facilitate the dropping of the charges. Ms Pringle declined the offer and decided to pursue the prosecution.

In February 1999, the charges against Clarke came on for hearing in court. Pringle gave evidence but Paul Rofe QC, the then DPP, entered a nolle prosequi. At that stage, Clarke had not given evidence.

In April 2000, shortly after he had lost his ALP endorsement for his seat (now re-named Enfield), Clarke spoke on air on Fr John Fleming’s program on radio 5AA. Atkinson also spoke. Atkinson said that the result of the Clarke/Pringle trial was unsatisfactory and that the ALP needed a “not guilty” verdict. Clarke considered Atkinson’s statements to be defamatory of him.

2000 - The Defamation Action

In October, Clarke instituted an action for defamation against Atkinson in the District Court. Atkinson filed a defence and counter-claim alleging that Clarke had defamed him on the same radio program. The action progressed very slowly – there were various interlocutory applications during 2001 and 2002.

March 2002 – State Election

Following the State election on 12 March, the ALP formed government with the support of Peter Lewis. Clarke had unsuccessfully stood as an independent candidate for Enfield. Mike Rann became Premier and Michael Atkinson was appointed Attorney-General. Randall Ashbourne was appointed Premier Rann’s Senior Advisor.

October 2002 - Clarke’s dealings with Randall Ashbourne

On 28 October (about 3 weeks before the defamation action was due to begin), Ralph Clarke met Ashbourne at Lena’s Café. The discussion centred on Clarke’s intentions in relation to the defamation action. (A detailed account of this discussion and those which follow appear in the Executive Summary of this Report under the heading “Ralph Clarke’s evidence to the Select Committee”).

A short time later, but prior to the trial date, there was a second meeting between Clarke and Ashbourne. During this “second meeting”, Ashbourne offered Clarke two positions on government boards if he would discontinue his defamation action.

Shortly after the second meeting, there was a third meeting. At this meeting and in a later telephone conversation, Ashbourne confirmed that Clarke would be appointed to two government boards if he discontinued his defamation action.

15 November 2002 - Defamation action discontinued

Clarke said that, on the Thursday prior to the date on which the trial was scheduled to commence (ie, 15 November), he received a call from Ashbourne who said ‘Mick [ie, Atkinson] would like you to have your solicitors file the Notice of Discontinuance in your matter by tomorrow (Friday) as he doesn’t want his lawyers to have to work unnecessarily over the weekend on the off chance the case went on.’ Clarke agreed and the notice was filed on 16 November. There was no public announcement of the settlement.

19-20 November 2002 – Treasurer and Premier informed

On Monday, 19 November, Ashbourne attended a regular meeting of Ministerial advisors. Also in attendance was Cressida Wall who was Chief of Staff to Deputy Premier and Treasurer, Kevin Foley. Ashbourne reported that the Clarke/Atkinson action had been settled. The following day, Ashbourne asked Wall to find board positions for Clarke because he had dropped the lawsuit against Atkinson. She reported this conversation to Foley who (in her presence) telephoned Ashbourne and said “What the hell have you done?” Foley immediately spoke to Premier Rann who convened a meeting that included Foley, Atkinson and senior members of the Premier’s staff, including Ashbourne.

20 November-4 December 2002 - The McCann Inquiry; the “cover-up” begins

Later on 20 November, the Premier requested Warren McCann, Chief Executive of the Department of Premier and Cabinet, to conduct an investigation into the matter. The Premier clearly understood the seriousness of the situation. McCann interviewed Ashbourne and he sought legal advice from a Victorian solicitor who, in turn, sought advice from a member of the Melbourne Bar.

On 2 December, McCann presented a 3-page report to the Premier. He concluded that there were “no reasonable grounds for believing” that the conduct of either Ashbourne or the Attorney-General was “improper”. McCann concluded that Ashbourne’s actions “may have been inappropriate” and he was given a “letter of reprimand and a warning” by the Premier .

On 4 December, the Premier sent McCann’s Report to the Auditor-General who, on 20 December, wrote to the Premier saying the “action taken is appropriate to address all of the issues raised”.

June 2003 - The public finally informed

No public announcement was made by the Premier or any person concerning the extraordinary events outlined above. The matters were not reported to the police. Crown Law advice was not sought. The first public hint of the matter surfaced on 25 June when, in Question Time in Parliament, the Liberal Member for Bragg asked Deputy Premier Foley whether he had asked the Premier or anyone on the Premier’s staff to instigate an inquiry into the actions of the Attorney-General. The Deputy Premier said he would take the question on notice.

On 26 June in Parliament, Foley made a Ministerial Statement outlining his version of events. Atkinson issued a statement denying that he had breached the Ministerial Code of Conduct.

On 28-29 June, the government consulted the Crown Solicitor who advised that the information should be referred to the Anti-Corruption Branch of the SA Police.

On 30 June, Atkinson stood down as Attorney-General and the following day, Ashbourne was “stood down”.

On 14 July, the House of Assembly had its first sitting since 26 June and the Premier made a Ministerial Statement which repeated much of the Deputy Premier’s statement of 26 June 2003. The Premier endeavoured to explain why police were not called in November and he announced that the government would establish “an independent review”.

August 2003 - Ashbourne charged

On 28 August, the Acting DPP, Wendy Abraham QC, announced that Ashbourne would be charged with the offence of abuse of public office but that “there is insufficient evidence to charge anyone else in respect of the matter”. Ashbourne was charged and the Premier sacked him. Atkinson was reinstated as Attorney-General.

February 2004 – Ashbourne enters plea

On 13 February, Ashbourne entered a plea of not guilty. On 6 June, a Magistrate ruled that there was sufficient evidence for Ashbourne to be put on trial on a charge of abuse of public office, and on 13 July, Ashbourne was formally arraigned in the District Court.

June 2005 - Ashbourne’s trial

Ashbourne’s trial commenced on 8 June. The course of the trial will not be rehearsed here. The transcript of the trial was tabled in this Select Committee.

On 17 June, Ashbourne was acquitted.

Select Committee

On 7 July 2005, the Legislative Council appointed this Select Committee.

December 2005 – Ashbourne settlement

On 8 December 2005, the government finalised an agreement whereby it agreed to pay Ashbourne at least $443,500 (plus legal costs of $17,000) and Ashbourne agreed to release the government from any liability arising from the termination of his employment.


PART 7

SUMMARY OF EVIDENCE

This section of the Report was prepared by the Research Officer of the Select Committee. It comprises a summary of the evidence received in relation to each Term of Reference. In some cases, the Terms of Reference are grouped together.

Our conclusions in relation to each Term of Reference are set out in the Part 8 of this document. However, the principal conclusions have already been noted in the Executive Summary of Conclusions in Part 1 of this Statement.

1. Whether the Premier or any Minister, ministerial adviser or public servant participated in any activity or discussion concerning:

a. The possible appointment of Mr Ralph Clarke to a government board or position; or

b. The means of facilitating recovery by Mr Clarke of costs incurred by him in connection with a defamation action between Mr Clarke and Attorney General Atkinson.

(The activity and discussions and events surrounding them are referred to in these terms as “the issues”.)

2. If so, the content and nature of such activity or discussions.

3. Whether the Premier or any Minister or ministerial adviser authorised any such discussions or whether the Premier or any Minister or ministerial adviser was aware of the discussions at the time they were occurring or subsequently.

Ms Davidson, Office of the Director of Public Prosecutions (DPP) indicated in her letter to the Select Committee, dated 28 September 2005, subsequent to her appearing on 22 September 2005, that when interviewed by Mr McCann the Attorney General indicated there was no mention of employment, jobs or board positions during the three meetings he had with Mr Ashbourne. A qualification was made with regard to the third meeting where boards may have been encompassed within the term ‘rehabilitation’ but that it was the Attorney General's view that Mr Clarke should not be appointed to any position. In his Statement of Witness, signed 5 December 2003, the Attorney General declared that he had no recollection of boards or committees being canvassed for Mr Clarke.

Ms Davidson also included extracts from Mr McCann's interview with Mr Ashbourne wherein the discussion about government boards was raised. Mr Ashbourne indicated that the discussions with Mr Clarke had been around rehabilitation and that Mr Clarke had indicated that he would not mind sitting on few boards, where upon Mr Ashbourne gave assurance that he would see what could be done. Furthermore, Mr Ashbourne stated that at no time did he offer Mr Clarke a government position but would use his best endeavours to achieve a government appointment. As to discussions with the Attorney General, Mr Ashbourne stated in the interview with Mr McCann that the Attorney General had indicated that he did not want to give Mr Clarke a thing or have him around but would speak with others about areas where Mr Clarke's talents could be used, such as, in the sphere of industrial relations and jobs.

Ms Davidson went on to state that in cross-examination on the voir dire Mr Ashbourne conceded the interview with Mr McCann was accurate. However, Mr Ashbourne changed his evidence at the trial after the McCann record of interview was excluded on the voir dire, and denied that there were any discussions about boards at the second meeting with the Attorney General.

Anti-Corruption Branch (ACB), South Australian Police (SAPOL), transcripts and Statement of Witness, 5 December 2003, indicate that the Attorney General maintained that board appointments for Mr Clarke did not come up in discussions with Mr Ashbourne. He asserted that the first he was aware of board positions being mooted for Mr Clarke was on 20 November 2002. Evidence provided by the Attorney General in cross-examination at the trial corroborated his statement to the ACB, that is, Mr Ashbourne had not mentioned board appointments in discussions with him.

Mr Clarke, in his submission to the Committee on 2 November 2005, indicated that he had had a series of conversations with Mr Ashbourne; once during March/April, then, during October and November 2002. The first of the later series occurred over lunch on 28 October 2002. The conversations ranged over a number of topics including whether Mr Clarke was continuing his defamation action against the Attorney General and possible opportunities for Mr Clarke to serve in different capacities. At a later meeting with Mr Ashbourne discussions focussed on settling the differences between the Attorney General and Mr Clarke, possible future board positions and help for others who had been former Australian Labor Party (ALP) members or employees. At a third meeting with Mr Ashbourne, Mr Clarke gave him a handwritten A5-sized note (of which he indicated he had made a photocopy but that it was possibly lost in the number of moves of residences and offices). Mr Clarke had listed all his expectations regarding outcomes of their negotiations, that is, that he receive two board positions, no opposition by the Attorney General to Mr Clarke's readmittance to the ALP, no discrimination against supporters of Mr Clarke and that the Attorney General meet Mr Clarke's legal costs, all in lieu of Mr Clarke withdrawing his defamation action.

Mr Clarke indicated that he had later received a telephone call from Mr Ashbourne in which he advised Mr Clarke that the Attorney General had agreed to all the points on Mr Clarke's note, with the exception of paying Mr Clarke's legal costs of $15 000. After discussing the call with his supporters, including Mr Lockwood, Mr Clarke telephoned Mr Ashbourne to say that he would instruct his solicitor to withdraw defamation proceedings. Mr Clarke stated that he had then received a call from Mr Ashbourne, on the Thursday prior to the week the defamation case was to commence in the District Court, saying that the Attorney General wanted Mr Clarke's solicitors to file the Notice of Discontinuance for the defamation case by the following day Friday, 15 November 2002. Mr Clarke stated that he had never spoken with the Attorney General personally.

Mr Lockwood, in evidence to the Committee, 19 October 2005, indicated that although he had not been present at the meetings between Mr Clarke and Mr Ashbourne, he had been present when Mr Clarke received telephone calls from Mr Ashbourne. Following these conversations, he indicated that Mr Clarke would confirm with those present that Mr Ashbourne was the caller and summarised the contents of those conversations. He asserted that Mr Clarke was quite open about the proposal of withdrawing from the defamation action in exchange for two board positions. He also indicated that between 25 June 2003 and 5 July 2003 Mr Clarke expressed concern about Mr Ashbourne being in a deal of trouble and that according to Mr Clarke it was not fair as he had only been the messenger for the Attorney General. Mr Lockwood interpreted the actions as an attempted cover up and subsequently sent a fax to Liberal Party headquarters 7 July 2003, referring to the Attorney General's and Mr Ashbourne's roles as they pertained to a story in The Advertiser newspaper, that day.

In response to questions from the Committee about the Attorney General’s involvement, Mr Clarke indicated that he had been around politics for a long time and would not have given any credence to the offers if he believed Mr Ashbourne had been acting of his own volition. He also admitted to delaying his withdrawal of legal action once he had received the telephone call from Mr Ashbourne. His legal team had advised him that, based on the Liberal member for Florey, Mr Sam Bass’ case, wherein the High Court of Australia upheld the appeal against the South Australian Supreme Court, he did not have a good prospect of winning his actions against the Attorney General. Mr Clarke stated that he was keen to establish a source of income post his election defeat. He asserted, on a number of occasions, during his evidence at the Committee, that he believed Mr Ashbourne acted as an emissary for the Attorney General as Mr Ashbourne had no say on the internal workings of the ALP.

Mr Clarke indicated that apart from Mr Lockwood he had had discussions with others regarding the offers and that one of the ten or twelve people had been Mr Ron Roberts with whom he discussed, in a general nature, the offers in face-to-face meetings and by telephone. He indicated that that Mr Roberts had been the only member of the current government with whom he had such discussions but that he had also spoken with former senator Mr Chris Schacht and former member Mr Murray DeLaine.

Ms Pringle, in her statement to the Committee, indicated that she had spoken with the Attorney General on 15 November 2002, regarding her need to testify at the defamation case and was advised by him that the case was not proceeding as an agreement had been reached. She stated that the Attorney General had told her that ‘the instruction to settle had come from higher up’ (Hansard 24 November 2005, pp 377) for him to settle the case.

She indicated that her understanding was that the terms of the settlement were board appointments for Mr Clarke, one of which was purported to be the Work Cover board. Ms Pringle subsequently tabled a letter from Superintendent Peter Simons indicating that she had spoken with Chief Inspector Graham on 4 July 2003 and that her information to the ACB was assessed and it was determined that there was not need for the ACB to further contact her.

Mr Karzis indicated to the Committee on 1 December 2005, that he and the Attorney General were called and proofed by the DPP as ‘ witnesses of truth’ at Mr Ashbourne’s trial. He reiterated that in his statement to the ACB (signed 3 December 2003 and again later with amendments), and in his evidence in court, he had attended a meeting at which he, Mr Ashbourne and the Attorney General were present and in which Mr Ashbourne raised the prospect of Mr Clarke’s willingness to withdraw his defamation action in lieu of board or committee appointments. Mr Karzis’ statement at the time was that it had nothing to do with him and that the Attorney General had made no specific comment on the proposal although his demeanour was one of marked surprise. He conceded that his and the Attorney General’s recollections differed regarding a discussion about board positions for Mr Clarke.

In the McCann interview, ACB transcripts, statement (1 July, 5 July, 18 July 2003) and Statement of Witness (signed 5 December 2003) and in trial evidence, the Attorney General maintained he had not engaged in any such discussions. He indicated that they had talked in broad terms about Mr Clarke's and other's (eg Murray DeLaine, former State Member for Price, Ms Linda Martin, Ms Lorraine Harris and Mr Lockwood) rehabilitation back into the party and that he had assumed that as Mr Ashbourne was a ministerial adviser to the Premier that the three discussions around rehabilitation were done with the Premier's knowledge, which in retrospect were not true. In the Premier’s evidence to the ACB on 6 July 2003 and Statement of Witness, signed 9 December 2003, he indicated that he had no knowledge of the aforementioned discussions.

4. Whether the conduct (including acts of commission or omission) of the Premier or any Minister or ministerial adviser or public servant contravened any law or Code of Conduct; or whether such conduct was improper or failed to comply with appropriate standards of probity and integrity.

Mr McCann's report to the Premier, 2 December 2002, cites 'Specifically you ask that I undertake a preliminary and urgent investigation as to whether or not there are reasonable grounds for believing that there may have been any improper conduct or breach of Ministerial standards, or, in the case of Mr Ashbourne, the standards required of a Ministerial adviser.' (McCann, W. (2002) ‘Investigation into certain matters relating to the Attorney General and Mr Randall Ashbourne’, p 1)

The advice from Mr McCann to the Premier was that Mr Ashbourne, as a ministerial adviser, had engaged in inappropriate conduct, as described in the relevant Code of Conduct. He added that there had been no breach or improper conduct, as defined in the codes indicating that this was supported by legal advice provided to him by Mr Beazley. The advice stated:

'It is clear that if the defamation proceedings as between the Attorney-General and Clarke were settled on terms that included expressly or implied the offering to Clarke of a position on a government board or other government position, such conduct would certainly breach the ministerial code of conduct.’ (SAPOL, List of Documents, Documents for Court File, No. 6, Letter from Mr Beazley Special Counsel with Deacons - requested by McCann to review preliminary inquiry. Letter sent to McCann 29/11/02, Attachment G, p 10).

Mr Beazley advised Mr McCann that based on his evidence there had been no breach of ministerial code of conduct by the Attorney General. Mr Beazley elaborates on this in his letter to Mr McCann stating that
'There was no reasonable basis to conclude, as against the Attorney-General that he had engaged in any improper conduct or breach of Ministerial standards.' (ibid, p 2)

The Auditor General, in his submission to the Committee, indicated that he was firmly of the belief that the conduct of Mr Ashbourne was inappropriate and that he should have been under the control of the Premier's Chief of Staff. He believed that the Premier, through his formal letter of reprimand, had appropriately dealt with the breach made by Mr Ashbourne.

The Committee raised the Whistleblower's Protection Act with a number of witnesses especially in terms of possible actions by Ministers. Some witnesses, including the Auditor General and ACB opined that the Act was not applicable in the circumstance of Ms Wall approaching the Deputy Premier. The Auditor General indicated that it was absolutely clear that the Act did not apply in this situation as there was no whistleblower seeking protection under the Act and the issue about section 5 (5) was irrelevant as the latter is only triggered in the context of perceived criminality. These observations were disputed by the former Crown Solicitor who stated 'There is nothing in the Act that requires a person to claim protection of the Act before that person gains protection of the Act.' (Hansard, 8 September 2005, p 206).

On further questioning, the former Crown Solicitor indicated that in terms of Ms Wall, she had performed her duties and gone to the minister concerned and 'if you look at the Act, it becomes the minister's obligation to report it to the Anti-Corruption Branch.' (Hansard 8 September 2005, p 211).

He indicated that in those types of situations people did not automatically think of the Whistleblower's Protection Act. Both Ms Abraham and Ms Davidson declined to comment on the actions of ministers with regard to the Act.

Mr Lockwood made allegations to the Committee on 19 October 2005 regarding the Attorney General putting pressure on Ms Robyn Geraghty (Member for Torrens) and Frances Bedford (Member for Florey) to have him removed from employment in their offices. Mr Clarke, in evidence, indicated that the member for Florey had told him during 2005 that the Attorney General had bullied her over a number of incidents and had at one time gone as far as taking advice from the police. He noted that in parliament the Member for Torrens rejected the notion of bullying and denied she had been asked to terminate Mr Lockwood's employment.

5. Whether the Premier or any Minister or ministerial adviser made any statement in relation to the issues which was misleading, inaccurate or dishonest in any material particular.

There were purportedly three meetings between the Attorney General and Mr Ashbourne and there are varying versions of what occurred at those meetings, particularly whether or not board positions for Mr Clarke were discussed. Mr Karzis, ministerial adviser to the Attorney General, was present at, at least, one of the meetings and according to ACB transcripts and in evidence at Mr Ashbourne's trial he indicated that the topic of boards for Mr Clarke was raised. Ms Davidson’s letter to the Committee, dated 28 September 2005, indicated that in the McCann interview Mr Ashbourne revealed that he had spoken to the Attorney General about these matters but in evidence in his trial, post voir dire, his position changed with him testifying that no such discussions had occurred and that Mr Clarke had not spoken with him about boards.

In his Statement of Witness, signed 5 December 2003, the Attorney General indicated that he had had three meetings with Mr Ashbourne, one at which Mr Karzis was also present, and that they related to the actual litigation and the effect it may have on the Party and government. He indicated that it was during those discussions that the rehabilitation of Mr Clarke was raised in terms re-establishing relationships within the Party and serving the Party in some way, and that it was also to apply to supporters of Mr Clarke who were, at that time, outside the ALP. He insisted that at no time did they explore what might occur once Mr Clarke had been re-admitted into the ALP.

In his Statement of Witness signed 24 November 2003, the Deputy Premier indicated that during the afternoon of 20 November 2002 he had a conversation with his Chief of Staff, Ms Wall in which she expressed grave concerns about Mr Ashbourne’s alleged actions. She had indicated that earlier in the day Mr Ashbourne had raised with her board appointments for Mr Clarke in exchange for him dropping the legal action against the Attorney General and that Mr Ashbourne had wanted to know what boards might have been available in the Deputy Premier's industry portfolio. In response to Ms Wall's comments the Deputy Premier confronted Mr Ashbourne over the telephone and immediately met with the Premier. He indicated that the Premier called a meeting and as a consequence of that meeting Mr McCann was instructed by the Premier to conduct an inquiry into the Ministerial Code of Conduct, standards and accountability by government.

6. The failure of the Premier, the Deputy Premier, the Attorney General and the, then, Minister for Police to report the issue in the first instance to the Anti-Corruption Branch of the SA Police.

7. Whether the actions taken by the Premier and Ministers in relation to the issues were appropriate and consistent with the proper standards of probity and public administration and, in particular:

a. why no public disclosure of the issues was made until June 2003;

b. why Mr Randall Ashbourne was reprimanded in December 2002 and whether that action was appropriate;

c. whether the appointment of Mr Warren McCann to investigate the issues was appropriate;

d. whether actions taken in response to the report prepared by Mr McCann were appropriate.

The former Crown Solicitor became aware of the allegations concerning the offering of board positions to Mr Clarke, in return for him settling his defamation proceedings against the Attorney General, before 30 June 2003, as Mr McCann had visited him in the previous week. Mr McCann's visit was to apprise the Crown Solicitor of the reason why he, Mr McCann, had not consulted with the Crown Solicitor in November 2002 and had gone to Victoria instead to seek legal advice. Mr McCann's reasoning was that because the Crown Solicitor was in the Attorney General's department, and because the Attorney was being investigated, this represented a conflict for the Crown Solicitor. The Crown Solicitor’s response was that he was somewhat baffled by the notion that he would have been regarded as having a conflict of interest. Mr McCann subsequently provided the Crown Solicitor with the information and discussed the pertinent issues. The Crown Solicitor had then informed Mr McCann that based on the information available to him, if he had been consulted in the first instance, that is November 2002, ‘he would have probably advised him to send the allegations to the Commissioner of Police.’ (Hansard, 8 September 2005, p 201).

The former Crown Solicitor indicated to the Committee that on Sunday 29 June 2003, in his role as the Crown Solicitor, he was given materials pertaining to the preliminary investigation and was instructed to provide advice to the Deputy Premier, the following day Monday, 30 June 2003. He was to advise on whether the allegations should be sent to the Commissioner of Police for investigation of possible criminal offences. Advice on a secondary question, whether the McCann report should be made public, was also sought from the Crown Solicitor.

The former Crown Solicitor indicated that his advice to the Deputy Premier was that the preliminary investigation had only focussed on the Ministerial Code of Conduct and had not given due consideration to possible criminal conduct. He had also stated that the investigation was incomplete, as not all relevant persons had been interviewed. In terms of the allegations contained in the statements, he advised that they should have given rise to suspicion that offences had been committed against the Criminal Law Consolidation Act, sections 249, 251 or 253. He had advised that it was not possible to make a proper assessment in the absence of a police investigation and that it would be prudent not to release the report until such investigations had taken place. The former Crown Solicitor understood the Commissioner of Police was contacted that same day, Monday 30 June 2003.

The former Crown Solicitor had the impression, from previous witness statements to the Committee, that in the main, there was limited knowledge of the roles of the police, Director Public Prosecutions, the Crown Solicitor and the Auditor General in these circumstances, and that this had added confusion to public debate on the issue. He indicated that in relation to indictable offences, the roles are very distinct.

The police:
investigate allegations;
obtain evidence; and
determine whether there is sufficient evidence to warrant referral to the appropriate prosecuting authority.

The Director of Public Prosecutions:
determines whether to prosecute matters, referred by the police, in the courts;
conduct prosecutions; but
is not an investigating body nor the authority to charge people.

The Crown Solicitor:
provides legal services and advice to government; but
has no role in investigations and prosecutions.

The Auditor General:
provides opinions on financial management; and
under the Public Finance and Audit Act comments on efficiency and the economic use of public sector resources; but
has no role in investigation and prosecution of criminal offences; nor
to provide legal advice to the government.
(Hansard, 8 September 2005, p 203)

Mr McCann investigated conduct under the Ministerial Code of Conduct and sought legal advice from Mr Beazley. The Auditor General provided advice based on the McCann Report and the associated legal advice. The Government acted on the advice in the McCann report, submitted 2 December 2002, and in the Auditor General's letter, dated, 20 December 2002, in which both indicated that the matter was a disciplinary issue. The Premier sent a written reprimand and directions to Mr Ashbourne, 4 December 2002. The former Crown Solicitor concluded that the single mitigating factor that delayed reporting the issue to the Anti-Corruption Branch was that that the Chief Executive of the Department of the Premier and Cabinet and the Auditor General had neither the experience, expertise nor function to decide on issues regarding criminal offences.

On 30 June 2003, the acting Premier consulted with the former Crown Solicitor who advised him to send the report to the Commissioner of Police. Due process occurred, involving the ACB, and the DPP, after which the magistrate in the District Court, ruled that there was a case to answer. Significantly, the lawyer representing Mr Ashbourne did not bring an 'application to stay the proceedings as abuse of process if it were considered that the evidence did not disclose an offence at law or that the prosecution was improperly brought.' (Hansard, 8 September 2005, p 204).

The acting Premier acted as soon as he was made aware of the possible criminal actions and sent the report to the Commissioner of Police for police investigation. After the trial the Crown Solicitor, was contacted by Mr Kelly from the Deputy Premier's office who indicated that ‘he was informed that both the Premier and Deputy Premier agreed with my advice [the Crown Solicitor's] that the matter should be referred to the police.' (Hansard, 8 September 2005, p 204).

The Premier, in his Statement of Witness, dated 9 December 2003, indicated that he had taken advice from both Mr McCann and the Auditor General; that the issue was a disciplinary matter and acted accordingly. His specific concern was that Mr Ashbourne's contract stated that he was to act on instructions and to act in a proper and lawful way, specifically because he worked in the Premier's office and that by that fact alone, he would have been perceived as acting on behalf of the office or on behalf of the government. The Premier was also categorical in stating that Mr Ashbourne had no responsibility, perceived or otherwise, in seeking or handling board appointments.

The Premier confirmed that the Criminal Law Consolidation Act had been discussed and he was of the understanding that if breaches against the Ministerial Code of Conduct, which included sections of the Criminal Law Consolidation Act, were deemed criminal he would have been advised accordingly. He had made the decision to refer the McCann report to the Auditor General to ensure that there was no impropriety.

It was the former Crown Solicitor's and Ms Abraham's view that there was enough evidence, for example, Ms Wall's concern of corrupt conduct and discussions regarding the Criminal Law Consolidation Act, at meetings between the Attorney General, Premier, Deputy Premier and others, that should have acted as a catalyst to refer the issue to the Commissioner of Police.

8. What processes and investigations the Auditor General undertook and whether the Auditor General was furnished with adequate and appropriate material upon which to base the conclusions reflected in his letter dated 20 December 2002 to the Premier.

On 26 August 2005, the Auditor General indicated to the Committee that he had had a brief conversation with Mr McCann prior to Mr McCann submitting his report to the Premier, 2 December 2002. Upon hearing that Mr McCann had sought legal opinion from Victoria the Auditor General had advised him that there was nothing else he would have done given the same circumstances. Mr McCann had also indicated to the Committee that he had had telephone discussions with the Auditor General well into the preliminary inquiry.

At a later stage, the Auditor General received a letter from the Premier, dated 6 December 2002, seeking his advice. He was provided with a copy of the report, various statements and the Victorian legal advice. The papers included the report of discussions between Mr McCann and Mr Ashbourne; statements from Ms Wall and Ms Glover; the advice from Mr Beazley; a letter of reprimand from the Premier to Mr Ashbourne; and the minute of the meeting where mention was made of possible criminal behaviour. The Auditor General referenced the Criminal Law Consolidation Act, specifically sections 251 and 253, and determined that there was no criminality involved and advised the Premier that it was a disciplinary issue.

In his statement to the Committee, the Auditor General disputed the DPP's interpretation of section 251, and asserted that Mr Ashbourne should never have been charged. He referred to section 239 of the aforementioned Act citing that a person shall not be prosecuted for an attempt in lobbying to do something in the future, which he believed Mr Ashbourne's behaviour to be. The Auditor General had not considered the Whistleblower's Protection Act as he believed it did not apply to the circumstances he was asked to respond to, that is, the McCann report and the advice from Mr Beazley.

Ms Abraham furnished the Committee with an explanation about the offence of abuse of public office and challenged the inaccuracy of comments made to the Committee by other witnesses regarding the Criminal Law Consolidation Act:

Section 251 the offence is completed 'at the time the public officer improperly exercise his power or influence with the intention of securing a benefit for himself or another.' (Hansard, 22 September 2005, p 245).

Section 239, 'which excludes a person being charged or found guilty of an offence of attempting to commit an offence under part 7.'(ibid). The section 'does not result in the conduct here being insufficient to commit the offence contrary to section 251.'(ibid). This section does not confine the operation of section 251 as the offence is committed at the time the influence is exerted, it does not require a successful outcome of that influence with another party.

Ms Abraham asserted that in this case the offence was committed when Mr Ashbourne made overtures to Mr Clarke. Mr Ashbourne gave proof of overtures to Ms Wall, whereby he indicated his position of influence, through his discussion with Mr Clarke and the Attorney General, in securing a board appointment for Mr Clarke if the latter showed good faith with regard to rehabilitation back into the Party. This was also reflected in comments made to Mr McCann in response to the question 'Did you indicate that you would use your best endeavours to achieve a government appointment?' the answer from Mr Ashbourne was 'yes’.' (Hansard, 22 September 2005, p 246).

Ms Abraham did not use the evidence in Mr McCann’s report to the Premier in her decision making, as it was obvious to her that both the inquiry and report would be challenged as admissible evidence because of the way Mr McCann had conducted the interview, that is, Mr Ashbourne was not provided the necessary warning nor were verbatim records taken. The trial judge, Judge Michael David, heard evidence as part of the voir dire hearing and subsequently declared it inadmissible. She indicated that in making a decision to prosecute full consideration was given to every aspect of the law and prosecution policy.

Ms Abraham was particularly concerned that the Auditor General gave advice and prejudged the issues having neither the experience nor any function in relation to prosecutions in South Australia. She maintained that the disturbing factors in the Auditor General witness statement included, his views on the criminal justice system and decision making with regard to prosecutions and his categorically stating that because Mr Ashbourne had not been found guilty and that the jury had taken a short time to determine this, the prosecution should never have taken place. Ms Abraham opined that by his statements the Auditor General seemed not to have an understanding of the prosecution and trial system in South Australia.

In his statement to the Committee, the former Crown Solicitor indicated that shortly after 30 June 2003, the Auditor General had telephoned and visited him expressing his concern that Mr Ashbourne had been charged. The Crown Solicitor advised the Auditor General to go to the DPP, as the decision had nothing to do with him, as the Crown Solicitor. He understood that the Auditor General acted on that advice.

9. Whether adequate steps were taken by Mr McCann, the SA Police and the Office of the Director of Public Prosecutions to obtain from Mr Clarke information which was relevant to the issues.

Mr McCann gave the Committee three reasons as to why he did not interview Mr Clarke. They were as follows:
it was not an inquiry on Mr Clarke;
as a public servant he had no powers to do so; and
there was no need to interview Mr Clarke.

Superintendent Simons indicated in a letter, dated 29 August 2005, subsequent to his appearance as a witness to Committee, 19 August 2005, that Mr Clarke had been contacted by Chief Inspector Graham, 1 July 2003 where upon Mr Clarke stated his wish to seek legal advice, on 3 July 2003 Mr Clarke rang to say he had been unable to do so, then on 4 July 2003 he rang to advise that he declined the interview on legal advice. A final attempt was made by the ACB via a letter dated 11 July 2005 to Mr Clarke's solicitor, Mr Eckermann, requesting Mr Clarke's cooperation. A return letter from Mr Eckermann, dated 15 July 2003, stated that his client was maintaining legal professional privilege. Mr Clarke, in his statement to the Committee, 2 November 2005, confirmed that he had been contacted by the ACB and that on legal advice he had refrained from giving evidence.

Mr Clarke's home in North Adelaide and his Adelaide office was search by the ACB, 18 July 2003. Mr Clarke confirmed this to be so in his statement to the Committee, 2 November 2005. He indicated he freely provided the ACB with access to his computers and files in both his office and home. He also stated that neither the prosecution nor the defence required him as a witness at Mr Ashbourne's trial.

Ms Abraham, in her statement to the Committee indicated that ‘there was some insufficient material to proceed against … Mr Clarke in relation to any criminal charges.’
(Hansard 22 September 2005, p 245).

Ms Davidson also indicated that the prosecution had no statement from Mr Clarke and that given the allegations, in all likelihood, he would have refused to answer any questions because they might have incriminated him.

10. Whether the processes undertaken in response to the issues up to and including the provision of the report prepared by Mr McCann were reasonable and appropriate in the circumstances.

Ms Glover, in her Statement of Witness, dated 9 December 2003, indicated that she had been approached by Ms Wall regarding possible corruption concerning Mr Ashbourne. Ms Glover advised the ACB that she had taken a file note on what Ms Wall had told her as well as file notes for the meetings held by the Premier at 12:30 pm and 12:45 pm, on 20 November 2002. A file note according to Ms Glover was made, as a general principle, on matters of importance. During the meetings, which included the Deputy Premier and others, reference had been made to part 7 of the Criminal Law Consolidation Act, which dealt with offences relating to public officers. The Attorney General confirmed this with the ACB quoting his comments at the meeting, that is, ‘this is a legal question and there may be a breach of acting improperly in the Act’ (Attorney General, Statement of Witness 5 December 2003, p 5).

The Premier informed Mr McCann about allegations concerning the Attorney General and Mr Ashbourne on 20 November 2002. He indicated that he was seeking Mr McCann's advice on the appropriate way to proceed. Mr McCann was told that there was a dispute on some facts of the matter. Mr McCann advised that he would have to establish the facts before advising the Premier on the necessary actions. As far as Mr McCann could recall, Ms Glover, the Deputy Premier, possibly the Attorney General and some staff members were present at that meeting. The Premier subsequently wrote him a letter on the same day instructing Mr McCann to conduct a preliminary inquiry along the lines that he had advised the Premier in the previous discussion.

Mr McCann indicated that at the time there were two views of which the Premier had informed him. In summary:
'that Mr Ashbourne had made an offer of an appointment to a government board in return for dropping litigation between Mr Clarke and the Attorney General.' (Hansard, 9 August 2005, p 94).

'There was another view (and certainly the view shared by Mr Ashbourne) that he had made no such offer.' (ibid, p 95).

Mr McCann commenced interviews for the preliminary inquiry, on 21 November 2002 interviewing the Attorney General and Mr Ashbourne. Mr Elbert Brooks was present at the interview with Mr Ashbourne and took handwritten notes. Mr McCann made his own handwritten notes in the interview with the Attorney General. Mr McCann signed both sets of typed notes from the interviews. Mr Ashbourne counter-signed the record of his interview. The Attorney General did not counter-sign the record of his interview.

Mr McCann analysed the two interviews and documents of recorded interviews with others, that is, Ms Glover’s notes of her discussion with Ms Wall and the meetings with the Premier, Deputy Premier, Attorney General and others. He stressed to the Committee that the interviews and analysis of records from other interviews were sufficient to form recommendations for the preliminary inquiry.

After conducting the inquiry and writing the report, Mr McCann obtained legal advice from Mr Beazley, a Victorian legal expert. According to Mr McCann, the legal advice did not refer to criminal behaviour nor had he the view that there had been any prospect of criminal action. The reference provided to Mr Beazley, for this purpose, was the Ministerial Code of Conduct to which the relevant sections of the Criminal Law Consolidation Act were appended.

In summary, the legal advice from Mr Beazley to Mr McCann indicated,
‘An examination of the different versions given by Ashbourne discloses material discrepancies in his accounts of the relevant facts. These inconsistencies between versions of events given by Ashbourne are troubling and raise concern about the reliability of statements made by him.’

He advised,
‘Further investigation may assist in understanding the extent to which Ashbourne has compromised the office of the Premier, or, indeed, any other minister in his mission to rehabilitate former party members.’

Furthermore,
‘While the outcome of the investigation is more likely than not to further compromise Ashbourne, it is unlikely to inculpate the Attorney-General into Ashbourne's designs.’
(SAPOL, List of Documents, Documents for Court File, No. 6, Letter from Mr Beazley Special Counsel with Deacons - requested by McCann to review preliminary inquiry. Letter sent to McCann 29/11/02, Attachment G).

Mr McCann's report concluded that Mr Ashbourne had acted without authority and that that was a matter for the Premier to deal with as a disciplinary matter under the code. He indicated to the Committee that it was his 'view that the initial reaction had been a massive over-reaction. There was no criminal behaviour. That it was an issue of acting without authority.' (Hansard, 9 August 2005, p 112).

Mr McCann reiterated to the Committee on a number of occasions that it was his judgement that there was no criminal behaviour.

In terms of conducting the preliminary inquiry, the former Crown Solicitor indicated to the Committee that his main criticism regarding the McCann inquiry was that it took place at all. He had nothing to add with regard to the conduct and nature of the McCann investigation in
'that the allegation was not of a disciplinary kind: the allegation, at its highest, was of corruption.' (Hansard, 8 September 2005, p 227).

Ms Abraham corroborated this view in her statement to the Committee stating that in her view 'the matter should have been referred to the police at an earlier point of time, preferably at the time of the making of the allegations.' (Hansard, 22 September 2005, p 242).

She stressed that a serious allegation had been made by a credible witness, with a responsible position in the Deputy Premier/Treasurer's office and that her immediate reaction to the comments from Mr Ashbourne was that it was corrupt. Evidence in the then Crown Solicitor's statement to the Committee was that Ms Wall had been a recent practising lawyer and had done her honours thesis on Ministerial Codes of Conduct.

11. Whether there were any material deficiencies in the manner in which Mr McCann conducted his investigation of the issues.

Mr McCann did not advise, nor was he instructed, to seek the advice of the Crown Solicitor, on 20 November 2002. He indicated that he thought the issue of corruption had been discussed at earlier meetings with the ministers and others. A file note, prepared by Ms Glover on 20 November 2002 and attached to Mr McCann's report, indicated there had been discussions on the matter of the Criminal Law Consolidation Act in previous meetings on the day.

Mr McCann indicated that after he had conducted the preliminary inquiry he wanted to test his findings within a legal framework and had considered whether the Crown Solicitor should be consulted. His view was that because the Attorney General was involved and the Crown Solicitor was in the Attorney General's department, a conflict of interest would be an issue, real or perceived. Mr McCann thus chose to seek legal advice interstate from the former Victorian Crown Solicitor, Mr Beazley.

Mr McCann's interviews with the Attorney General and Mr Ashbourne revealed a difference in versions of what had taken place in the three meetings at which they had both been present. He indicated to the Committee that, taking into account the legal advice from Mr Beazley, the preliminary inquiry finding was that Mr Ashbourne had acted without authority, that it was a disciplinary matter, and that he therefore had no reason to analyse other unresolved issues.

Mr Karzis, ministerial adviser to the Attorney General had said in evidence, that in one of the meetings involving the Attorney General and Mr Ashbourne, in which he was present, there was some discussion about boards or committees. Mr Karzis detailed the meeting between the Attorney General, Mr Ashbourne and himself in September or October 2002 in which he indicated that in the context of the civil action of Mr Clarke, Mr Ashbourne made mention of Mr Clarke's desire for positions on boards, with the Attorney General appearing to be 'flabbergasted' (Statement of Witness, amended and signed post 3 December 2003, p 4).

In his interview with Mr McCann, Mr Ashbourne indicated that there had been [discussions of board positions] for Mr Clarke with the Attorney General but that these were not linked to the defamation case. He also conceded in cross-examination on the voir dire that the McCann record of interview was correct. However, after the McCann record of interview was excluded on the voir dire, in evidence at his trial, Mr Ashbourne changed his position indicating that at the second meeting with the Attorney General there were no discussions on board positions for Mr Clarke. He denied that Mr Clarke had ever raised board positions with him. He denied in cross-examination that he would use his best endeavours to get Mr Clarke board positions.

In the transcript of interview with the ACB on 18 July 2003 and the Statement of Witness, 5 December 2003, the Attorney General maintained that board appointment for Mr Clarke never arose. His evidence in cross-examination at the trial was the same. Superintendent Simons considered it a critical issue in terms of the investigation and outcome, that is, Mr Ashbourne’s and the Attorney General's knowledge of alleged boards and/or committees as distinct from the general discussions about Mr Clarke's rehabilitation back into the ALP. It was a conflict of evidence the ACB could not resolve. Mr Beazley also noted this difference in evidence in his legal advice to Mr McCann wherein he discussed these differences and suggested the need for a more thorough investigation to resolve the issue. (SAPOL, List of Documents, Documents for Court File, No. 6, Letter from Mr Beazley Special Counsel with Deacons - requested by McCann to review preliminary inquiry. Letter sent to McCann 29/11/02, Attachment G, p 6).

12. Whether it would have been appropriate to have made public the report prepared by Mr McCann.

Mr McCann indicated to the Committee that his advice that the document not be made public related to issues of natural justice in that a number of people who had been named had not had the chance to present their evidence. He had advised the government that it seek legal advice if it intended to release the report and that the same argument applied if it were tabled in parliament, where it would attract parliamentary privilege. This advice formed part of the report to the Premier.

The Auditor General also indicated to the Committee that the parliament should not have been advised as the matter was, he opined, a disciplinary process and therefore had no basis for publication, adding ‘ The practice in government is that disciplinary matters are not made public.’ (Hansard, 26 August 2005, p. 195).

The former Crown Solicitor had also been asked on 29 June 2003 to provide advice to the Acting Premier, the following day, 30 June 2003, as to whether any or all of the McCann report should be made public. He advised that the McCann report should not be released if a police investigation was to occur.

13. The matters investigated and all the evidence and submissions obtained by and any recommendations made by the Anti-Corruption Branch of the SA Police.

Acting Premier, Mr Foley sent a request for investigation to the Commissioner of Police 30 June 2003, following advice from the Crown Solicitor. The Commissioner was the only person who could authorise an investigation into alleged corruption. The matter was immediately referred to the acting officer in charge of the ACB, Chief Inspector Peter Graham, who initiated contact with the acting Premier and the Attorney General to conduct a preliminary assessment. The Commissioner was provided with a report and subsequently determined that he would authorise an investigation. The investigation commenced around 2 July 2003 and was completed in early August 2003.

On 19 August 2005, Superintendent Simons presented the Committee with three folders of evidence pertaining to the investigation, answered questions and supplemented these with a letter, dated 29 August 2005, seeking leave to clarify some of his responses. These included 116 documents which related the interviews, statements, handwritten notes, affidavit, declarations, file notes, minutes, notices, letters, reports, the Ministerial Code of Conduct, emails, extracts from Hansard, general information, diary entries and a Statutory Declaration. Included within one of the folders was the only recommendation made to the Commissioner of Police, 5 August 2003, which read as follows:
'It is recommended this report (that is - the investigation documentation) be forwarded to the Director of Public Prosecutions to determine if there exists sufficient evidence of the commission of any criminal offences by Michael Atkinson, Randall Ashbourne and/or Ralph Clarke.' (SAPOL, List of Documents dated 18 August 2005 submitted to the Select Committee 19 August 2005).

From the onset, and throughout the investigation, the ACB maintained ongoing liaison with the DPP to ascertain the status of the investigation, primarily, the sufficiency of evidence. Superintendent Simons emphasised to the Committee that the police gather the evidence and rely on the lawyers, in the DPP, to provide guidance in investigations. For this investigation, Ms Davidson had the role to respond to ACB inquires and Mr Heffernan was the point of contact in this particular investigation. The first meeting with Mr Heffernan was 3 July 2003. The Commissioner of Police was provided weekly briefings throughout the process.

The ACB completed its report 5 August 2003 and delivered it to the Commissioner who, in turn, forwarded it to the Director of Public Prosecutions. The report indicated that the ACB did not feel that as investigators they had sufficient evidence to achieve a successful investigative outcome, as they did not have proof that discussion took place between Mr Ashbourne and Mr Clarke.

A subsequent meeting to discuss the report took place between the ACB and DPP and included the acting Director, Ms Abraham, Ms Davidson, Mr Heffernan, Detective Inspector Perry and Superintendent Simons. They discussed the relevant sections of the Criminal Law Consolidation Act in terms of sufficiency of evidence to proceed with a prosecution, for example, Ms Wall would be able to provide the direct or indirect evidence necessary, and that she was a credible witness, a judgement supported by the ACB. The ACB concurred with the DPP that there was sufficient evidence to proceed in terms of the abuse of public office.

In his letter to the Committee, dated 29 August 2005, Superintendent Simons indicated that Mr Heffernan, acting on instruction from Ms Abraham, provided the Commissioner of Police written advice, dated 28 August 2003, that there was sufficient evidence to charge Mr Ashbourne with one count of Abuse of Public Office. The DPP framed the charges based on information provided by Inspector Perry who forwarded it to the DPP through the Adelaide Prosecution Section of SAPOL.

A lot of evidence, the ACB believed, was in the possession of the solicitors acting on behalf of Mr Clarke and the Attorney General, and was subject to legal professional privilege. The ACB, for instance, wanted access to evidence related to the settlement of the defamation proceedings between the two parties, but could never ascertain the terms of the settlement. It was the understanding of the Superintendent that there had never been direct discussion between the Attorney General and Mr Clarke and that in fact all the negotiations were between Mr Bourne and Mr Eckermann acting on behalf of their respective clients.

The ACB had exercised its authority to search a number of premises under the power of the general search warrant within the Summary Offences Act. These included searches of Mr Clarke's residence and office (18 July 2003) as previously indicated, Mr Ashbourne's home (3 July 2003), the Attorney General's electoral office and residence (18 July 2003) and Mr Lockwood's home (16 July 2003) to access computers, files, documents and the like. No prior notification was given in exercising the warrants. Documents were also seized from the office of Mr Alexandrides, Department of the Premier and Cabinet, no search warrant was required as the inspection was by mutual agreement.

In response to questions relating to the seven months delay in the ACB becoming involved in an investigation, Superintendent Simons indicated that difficulties occur with delays, as facts are not fresh in people's memories. Documented statements were made, minutes taken for the two meetings on 20 November 2002 and the McCann inquiry report were key to the ACB, as they were all that were available to establish points of reference. Superintendent Simons expressed some puzzlement at the fact that although the issue of criminal corruption was raised by Ms Wall and by the Attorney General, 20 November 2002, it was subsequently overlooked.

14. Whether Mr Ashbourne, during the course of his ordinary employment, engaged in any (and, if so, what) activity or discussions to advance personal interests of the Attorney General and, if so, whether any Minister had knowledge of, or authorised, such activity or discussion.

15. Whether Mr Ashbourne undertook any and, if so, what actions to “rehabilitate” Mr Clarke, or the former Member for Price, Mr Murray De Laine, or any other person into the Australian Labor Party and, if so, whether such actions were undertaken with the knowledge, authority or approval of the Premier or any Minister.

Refer to also terms of reference 1, 2 and 3 for details regarding:
Mr Clarke's statement to the Committee on the series of events where he indicated that he had discussions Mr Ashbourne; and

The Attorney General's Statement of Witness, 5 December 2003, where he indicated discussions were broadly around Mr Clarke 's re-admission to the Party and that rehabilitation was to apply to supporters of Mr Clarke who found themselves outside the party, for example, Mr DeLaine (former State Member for Price), Ms Linda Martin, Ms Lorraine Harris and Mr Lockwood.

Mr Clarke's statement to the Committee on 2 November 2005 indicated that after the verbal (telephone) agreements, purportedly made with the Attorney General, through Mr Ashbourne, and about a week after lodgement of the Notice of Discontinuance, he received a call from Mr Roberts (President of the Legislative Council) advising Mr Clarke that Mr Ashbourne had rung him. Mr Ashbourne had contacted Mr Roberts advising him to tell Mr Clarke that there had been ructions about the mutual withdrawal of actions by the Attorney General and Mr Clarke, that an inquiry was being established and that Mr Ashbourne and Mr Clarke would not be able to communicate until the inquiry had been completed.

Mr Clarke described a later meeting between himself and Mr Ashbourne at the end of January/early February 2003 wherein Mr Ashbourne revealed the events which had occurred, beginning with Mr Ashbourne's discussion with Ms Wall. Ms Wall had apparently gone to the Deputy Premier expressing concern over the discussion, the Deputy Premier, in turn, went to the Premier and a subsequent meeting with other cabinet members, including the Attorney General and the then Minister for Infrastructure, took place. Mr Ashbourne had indicated to Mr Clarke that he was present in the meetings but was not given a chance to explain himself and that the Attorney General had offered to resign at that meeting. The files note of the meeting only relates to the Attorney General standing down pending an investigation.

Ms Davidson's letter to the Committee, dated 28 September 2005, indicated that Mr Ashbourne, when interviewed by Mr McCann and shown the note of his discussion with Ms Wall, confirmed their overall accuracy. Mr Ashbourne said that he had specifically told Mr Clarke there could never be a link nor tie to any promise and that the reason for doing so was that Mr Clarke had a habit of recording conversations. Mr Ashbourne had indicated to Mr Clarke that he would use his best endeavours to achieve a government appointment but never made an offer. In the interview, he said that he discussed Mr Clarke with the Attorney General but denied that the settlement of the defamation action was tied to board positions.

The letter from Ms Davidson provided further evidence as to validating the accuracy of his comments when Mr Ashbourne was cross examined on the voir dire where he indicated the accuracy of the McCann interview qualifying some comments and said the note regarding the meeting with Ms Wall was generally correct. However, when the McCann report was excluded on the voir dire Mr Ashbourne's position changed. Mr Ashbourne denied that at the second meeting with the Attorney General there had been any discussion about Mr Clarke and board/committee positions. He also denied that Mr Clarke had raised the issue of boards with him at that stage and denied he had ever indicated he would use his best endeavours to do so.

Mr Karzis advised the Committee that in his statement to the ACB on 5 December 2003, a meeting occurred involving the Attorney General, Mr Ashbourne and himself in September or October 2002. The context for the meeting was the civil actions of Mr Clarke wherein Mr Ashbourne had made mention of Mr Clarke's desire for positions on boards. The Attorney General's response seemed to have been one of marked surprise.

Mr Beazley, in his advice on the report from Mr McCann stated 'There is a difference between the evidence given by the Attorney General and that of Ashbourne on the extent to which the Attorney-General knew that Clarke wanted or expected or should have a government appointment as part of the rehabilitation.'
(SAPOL, List of Documents, Documents for Court File, No. 6, Letter from Mr Beazley Special Counsel with Deacons - requested by McCann to review preliminary inquiry. Letter sent to McCann 29/11/02, Attachment G, p 6).

The Premier, in his Statement of Witness on 9 December 2003, addressed the question as to whether any minister, public servant or staff discussed with him the possibility of Mr Clarke receiving a board position, by stating that he was not aware of, and did not authorise Mr Ashbourne raising such with Mr Clarke. He indicated that Mr Ashbourne
‘had absolutely no responsibility with respect to seeking or handling nominations for positions on government Boards or Committees.’ (Statement of Witness, 9 December 2003, p 7).

16. The propriety of the Attorney General contacting journalists covering the Ashbourne case in the District Court, during the trial, and the nature of those conversations.

The Committee questioned Mr Pallaras 15 July 2005 as to whether the DPP had concerns regarding media reports stating that the Attorney General had contacted them after the trial and suggest the way they should report proceedings. His response was that it was not usual but that he did recollect that when the Attorney General made a statement in parliament that the ABC had corrected their transcript.

17. With reference to the contents of the statement issued on 1 July 2005 by the Director of Public Prosecutions, Mr Stephen Pallaras, QC:

a. what was the substance of the “complaint about the conduct of the Premier’s legal advisor, Mr Alexandrides”;

b. what was the substance of the “telephone call made [by Mr Alexandrides] to the prosecutor involved in the Ashbourne case”;

c. what were the “serious issues of inappropriate conduct” relating to Mr Alexandrides;

d. whether the responses of the Premier, the Attorney General or any Minister or Mr Alexandrides or any other person to the issues mentioned in the Director of Public Prosecutions’ statement were appropriate and timely; and

e. whether any person made any statement concerning the issues referred to in the Director of Public Prosecutions’ statement which was misleading, inaccurate or dishonest in any material particular.

The Director of Public Prosecutions in his statements to the Committee, 15 July 2005, detailed a complaint against Mr Alexandrides, Senior Legal Adviser to the Premier, which related to a conversation between Mr Heffernan, DPP and Mr Alexandrides on 7 June 2005. The complaint regarding Mr Alexandrides was his threat and
'allegations that the prosecution was being conducted without bona fides and that we were being politically sensitive in the manner in we conducted ourselves: and … unless my prosecutor lifted his game, then he would be referred to the professional conduct board.' (Hansard, 15 July 2005, p 31).

The Director considered Mr Alexandrides had made a serious error of judgement in attempting to improperly influence the conduct of the prosecution. Mr Alexandrides called back on the same day and apologised for his inappropriate language stressing that he was just trying to clarify what the Premier could and could not say in relation to the court proceedings, specifically with regard to the trial judge's voir dire ruling and suppression order.

The Director sent a memorandum on the issue to the Attorney General dated 9 June 2005 outlining his concerns that Mr Alexandrides, by his actions, could have posed a significant risk with respect to the perception of political interference coming directly from the Premier's office. On the same day, 9 June 2005, Mr Alexandrides call Mr Heffernan asking him if he had made a complaint.

On 12 July 2005, the Director received a letter from the acting Attorney General, dated 8 July, in which a letter from Mr Alexandrides to the Minister, dated 6 July 2005, was attached. In the letter Mr Alexandrides explained that he was contacted by Mr Heffernan advising him that he had to pass on to the Premier the voir dire ruling regarding the McCann interview with Ashbourne. He had asked Mr Heffernan whether the ruling extended beyond the interview, a point later clarified by Ms Davidson, confirming Mr Alexandrides understanding of the voir dire and suppression order. He also explained that he had
‘contacted Mr Heffernan on 9 June 2005 because the Attorney General's Chief of Staff had sought my advice about whether the Attorney General should see the Director.' (Hansard, 15 July 2005, p 40).

In the letter he rejected the Director's inference of improper interference and agrees with the assessment of an error of judgement regarding his expressing his point of view to Mr Heffernan, regardless of their long standing friendship. The matter of the risk of perception of interference was clarified in the Director's second appearance at the Committee meeting on 29 July 2005, wherein he reiterated that he did not allege political interference but that the perception of such may have been an issue.

On 29 July 2005, the Director of Public Prosecutions was asked by the Committee why the DPP had not censured the Leader of the Democrats about her comments on first day of the trial, 6 June 2005, regarding a Royal Commission regardless of the outcomes of the court case. The Director indicated that the judge's comments about a mis-trial or contempt in making such statements would have been sufficient advice for all politicians to take heed.

The Director of Public Prosecutions expressed concern regarding a misleading matter which concerned the leaking of the contents of a memorandum, marked 'private and confidential', to the Attorney General, dated 9 June 2005, to Mr Alexandrides, and subsequently, into the media. He also expressed concern regarding the maintenance of an inference by the then acting Attorney General, in Parliament 30 June 2005 and on ABC radio 1 July 2005, that it was a leak emanating out of the DPP. The contents of the aforementioned memorandum sought to discuss with the Attorney General a matter of concern regarding the inappropriate conduct of Mr Alexandrides. The Director was questioned on his press release dated 1 July 2005. He refuted that the DPP had leaked the information, asserting that Mr Alexandrides had been provided information and that this was a leak of a private and confidential memorandum.

The Director opined that in managing his 9 June 2005 memorandum, it was inappropriate for the Attorney General's Chief of Staff to contact Mr Alexandrides about advice on whether the Attorney General see the Director about issues relating to Mr Alexandrides. He indicated that on that same day he had had a telephone discussion with the acting Attorney General about warning witnesses, including the Premier, about the voir dire and the judge’s suppression order. A second call from the acting Attorney General in which he asked about another issue the Director may want to discuss the Director had said that it was a matter for the Attorney General himself as it related to the Attorney General’s specific functions.

In reference to questions from the Committee about the Premier’s statement that he 'pointed out to the DPP's people, I will not be gagged by anyone' (Hansard, 29 July 2005, p 66), the Director indicated that the DPP cannot gag people and that it had been the trial judge who had made the voir dire ruling and suppression order which the DPP conveyed to the Premier. The Director of Public Prosecutions indicated that Ms Davidson had instructed the Premier, prior to him taking the witness stand, on the ruling and the suppression orders made by the trial judge. Court proceedings were temporarily suspended when breaches of the ruling by the Premier occurred.

18. Whether it would be appropriate in future to refer any credible allegation of improper conduct on the part of a Minister or ministerial adviser (that has not already been referred to the police) to the Solicitor-General in the first instance for investigation and advice.

The Premier, in his Statement of Witness, 9 December 2003, indicated that he had initially considered asking Mr McCann to contact the Solicitor General to conduct the inquiry but was informed that the Solicitor General had left his position to become a judge.

No further evidence tendered.

19. If the reference of such an allegation to the Solicitor-General would not be appropriate (in general or in a particular case) or would not be possible because the Solicitor-General’s absence or for some other reason, who would be an alternative person to whom it would be appropriate to refer such an allegation in the first instance for investigation and advice.

No evidence tendered.

20. Whether Mr Alexandrides assisted in framing the Terms of Reference for the Inquiry proposed by the Government in the resolution of the House of Assembly passed on 5 July 2005.

No evidence tendered.

21. What actions should be taken in relation to any of the matters arising out of the consideration by the Inquiry of these terms of reference.

See recommendations in Part 9 below.


PART 8

CONCLUSIONS

Our principal Conclusions are set out in Part 1 of this Report under the heading “Executive Summary and Conclusions”. In the following section, those Conclusions and other observations are specifically related to each Term of Reference.

Terms of Reference 1, 2 and 3

1. Whether the Premier or any Minister, ministerial adviser or public servant participated in any activity or discussion concerning:
a. The possible appointment of Mr Ralph Clarke to a government board or position; or
b. The means of facilitating recovery by Mr Clarke of costs incurred by him in connection with a defamation action between Mr Clarke and Attorney General Atkinson.

2. If so, the content and nature of such activity or discussions.

3. Whether the Premier or any Minister or ministerial adviser authorised any such discussions or whether the Premier or any Minister or ministerial adviser was aware of the discussions at the time they were occurring or subsequently.


Conclusion

1.1 The Premier’s Senior Advisor, Randall Ashbourne, did participate in such discussions and he did offer Ralph Clarke paid positions on two government boards and/or committees if Clarke discontinued his defamation action against Atkinson. Clarke accepted the offer and discontinued the action.

1.2 Prior to Clarke accepting the offer, both Attorney-General Atkinson and his advisor, George Karzis, were informed by Ashbourne that the offer had been made.

1.3 The Attorney-General knew of the offer and, although he appeared to be “flabbergasted and disturbed” by it, his response was: “Do what you want to do but don’t do it on my behalf”. This response amounted to endorsement of Ashbourne’s offer. Karzis was complicit in the offer and its endorsement.

1.4 On 20 November 2002, Premier Rann, Deputy Premier Foley and Minister Conlon became aware that Ashbourne had made offers to Clarke. In referring the matter to Mr Warren McCann for investigation rather than reporting it to the ACB, they preferred their own political interests ahead of the public interest in open and accountable government. By not reporting the matter to the ACB, they failed to act properly or in accordance with their public duty.

Term of Reference 4

Whether the conduct (including acts of commission or omission) of the Premier or any Minister or ministerial adviser or public servant contravened any law or Code of Conduct; or whether such conduct was improper or failed to comply with appropriate standards of probity and integrity.

Conclusion

4.1. The conduct of Attorney-General Atkinson in

(a) impliedly authorising Ashbourne’s offer,
(b) denying that he was aware that Ashbourne had offered Board positions on his behalf, and
(c)in adopting the attitude that Ashbourne could do as he liked so long as it didn’t involve himself (Atkinson) was:
• Reprehensible, if not criminally aiding and abetting the commission of a serious criminal offence,
• In clear breach of clause 2.4 the Ministerial Code of Conduct,
• Inconsistent with proper standards of honesty and integrity, and
• Conduct which rendered him unfit to hold the office of Attorney-General.

4.2. The conduct of Premier Rann in:

(a) appointing the Chief Executive of his own department to conduct the investigation,
(b) not reporting the issues forthwith to the ACB, and
(c) in not reporting to Parliament or the public the fact of the incident itself, the appointment of the McCann Inquiry or the result of that Inquiry
was:
- Improper, in that he placed his personal and political interests ahead of the requirements of openness and accountability, and
- Contrary to clause 2.4 of the Ministerial Code of Conduct.

4.3. The conduct of Ashbourne in offering to secure Clarke’s appointment to government boards in exchange for Clarke’s discontinuance of his defamation action against Atkinson was highly improper and reprehensible.

4.4. The initial conduct of Deputy Premier Foley on 20 November 2002 when he first learnt from Cressida Wall that Ashbourne had agreed to arrange for Clarke’s appointment to two government boards was understandable. He expressed outrage and immediately reported the matter to the Premier. He then attended the meeting at the Premier’s office where he questioned Ashbourne and told the Attorney-General that he should step down.

However, the Deputy Premier’s subsequent actions were unsatisfactory in that he:

• Agreed with the Premier and others that the issues should not be reported to the police
• Agreed to the establishment of the McCann Inquiry
• Participated in the “cover-up” of the affair by not revealing details of it until forced to do so in Parliament some seven months after the events.

4.5 The conduct of Minister Conlon:

Hon Patrick Conlon (Minister for Police) was present at the meeting in the Premier’s office on 20 November 2005. Although no evidence was received concerning his involvement at the meeting, it is clear that the criticisms of the Deputy Premier set out in the preceding paragraph apply equally to Minister Conlon

4.6 The conduct of George Karzis in failing to report to the Premier or to the ACB the fact that he had been present when Ashbourne informed Atkinson of his offers to Clarke and the proposal that Clarke be appointed to boards was reprehensible and demonstrated a lack of appreciation of the standard of conduct expected of Ministerial advisers.

Term of Reference 5

Whether the Premier or any Minister or ministerial adviser made any statement in relation to the issues which was misleading, inaccurate or dishonest in any material particular.

Conclusion

5.1. Both Ashbourne and Atkinson made misleading and inaccurate statements.

5.2. Ashbourne’s misleading statements are easily demonstrated. He told the McCann Inquiry that he had discussed with Atkinson the issue of board appointments but, later, he was able to tell the jury he did not have such discussions. Ashbourne admitted to Cressida Wall that he had offered Clarke board appointments but when she reported that fact to Foley, Ashbourne “refined” his story and he “refined” it again for the jury.

5.3 Atkinson’s misleading utterances included the statement that he was not aware of Ashbourne’s offers to Clarke until 20 November 2002. This was clearly contradicted by his own staffer, Karzis, who said that Atkinson had earlier heard of the offers and was “ flabbergasted and disturbed by them”. It is also inconsistent with

5.4 Atkinson’s assertion that he had “no recollection” of being informed of the dealings between Ashbourne and Clarke is not believable.

Term of Reference 6

The failure of the Premier, the Deputy Premier, the Attorney General and the, then, Minister for Police to report the issue in the first instance to the Anti-Corruption Branch of the SA Police.

Conclusion

6.1 The failure by the Premier, the Deputy Premier, the Attorney-General and the Minister for Police to report the matters to police as soon as they became aware of them on 20 November 2002, was:
• Inconsistent with the public duty of every citizen to report matters involving criminal behaviour to the police,
• Doubly inconsistent with the higher duty of Ministers of the Crown to uphold the highest standards of probity,
• Inconsistent with the requirements of The Whistleblowers Act to report possible corruption to the Anti-Corruption Branch of the SA Police, and
• Contravened clause 2.4 of the Ministerial Code of Conduct which requires Ministers to “act honestly, diligently and with propriety”.

6.2 The seven-month delay between the time the Premier and his Ministers became aware of the issues and the time when they were reported to the ACB jeopardised and compromised both police investigations and the subsequent trial.

Term of Reference 7

Whether the actions taken by the Premier and Ministers in relation to the issues were appropriate and consistent with the proper standards of probity and public administration and, in particular:
a. why no public disclosure of the issues was made until June 2003;
b. why Mr Randall Ashbourne was reprimanded in December 2002 and whether that action was appropriate;
c. whether the appointment of Mr Warren McCann to investigate the issues was appropriate;
d. whether actions taken in response to the report prepared by Mr McCann were appropriate.

Conclusion

7.1 As already mentioned, the actions of the Premier, the Attorney-General and other Ministers (and, indeed, the inaction of them all) were not appropriate and were not consistent with proper standards of probity, openness or accountability. In addition, their conduct fell short of the General Standards of Conduct prescribed in Section 2 of the Ministerial Code of Conduct.

7.2 The reason no public disclosure of the issue was made until June 2003 is plain: the Premier and his Ministers wished to “cover up” the affair in their own political and electoral interests. They placed their personal, party political interests ahead of the interests of the public.

7.3 Rather than the “reprimand” of Ashbourne, the issues should have been reported to the ACB and Ashbourne should have been stood down immediately.

7.4 The appointment of Mr McCann to investigate the affair was inappropriate. The affair should have been reported to the ACB. McCann was not a trained investigator. This led to him bungling the inquiry. The Crown Solicitor correctly described the McCann Inquiry as “inept”. Nor was McCann truly independent. His immediate superior was the Premier and it was in the Premier’s interest for the matter to be buried.

7.5 The actions taken in response to the McCann Report were inappropriate. However, the Report itself was deeply flawed as were its recommendations.

7.6 The finding of the McCann Inquiry that there “were no reasonable grounds” for believing that the conduct of either Atkinson or Ashbourne was improper or breached relevant Codes of Conduct is not credible. Those findings were based upon evidence which was incomplete and which was not properly tested.

7.7 The McCann Report concluded that “further investigation” should not occur because it would be “expensive and … unwarranted”. This conclusion was flawed and wrong. It presumed (wrongly, as later emerged) that further inquiries would prove fruitless. Moreover, McCann’s refusal to conduct further investigations on the ground that “it would be expensive” was wrong in principle and inconsistent with the most elementary principles of good public administration.

Term of Reference 8

What processes and investigations the Auditor General undertook and whether the Auditor General was furnished with adequate and appropriate material upon which to base the conclusions reflected in his letter dated 20 December 2002 to the Premier.

Conclusion

8.1 The Auditor-General has important statutory functions under the Public Finance and Audit Act. These functions do not include passing legal opinions upon the application of the criminal law. We accept the evidence of Crown Solicitor Walter QC, that the Ashbourne Affair had nothing to do with the Auditor-General and that he should not have intervened in the manner which he did.

8.2 The action of the Auditor-General in signing the letter dated 20 December 2002 to the Premier was ill-advised. He should not have given his imprimatur to the McCann Inquiry. This endorsement proved doubly inappropriate and embarrassing when the fatal flaws in the McCann Inquiry emerged at Ashbourne’s trial.

8.3 It was revealed to the Select Committee that, prior to him finalising his report, McCann had informed the Auditor-General of his inquiry and, later, the Premier invited the Auditor-General to sign off on McCann’s Report and he duly obliged.

8.4 Although not a lawyer, the Auditor-General should have realised that the appropriate response to the events revealed in the McCann Report was to report those matters to the ACB.

8.5 It is also surprising that the Auditor-General did not insist upon a more rigorous inquiry having regard to the legal advice from Deacons (a Melbourne law firm) to the following effect:

“The [McCann] investigation has been conducted with urgency and expedition. A much more thorough (and time consuming) investigation would no doubt resolve some outstanding issues which emerge from a reading of the material. For example, there is a difference between the evidence given by the Attorney-General and that of Ashbourne on the extent to which the Attorney-General knew that Clarke wanted or expected or should have a Government appointment …

“An examination of the different versions given by Ashbourne discloses material discrepancies in his accounts of the relevant events. …
“The inconsistencies between versions of events given by Ashbourne are troubling and raise real concern about the reliability of statements made by him”.

8.6 This advice was actually included in the McCann Report which was presumably read by the Auditor-General.

Term of Reference 9

Whether adequate steps were taken by Mr McCann, the SA Police and the Office of the Director of Public Prosecutions to obtain from Mr Clarke information which was relevant to the issues.

Conclusion

9.1 The reasons given by Mr McCann for not endeavouring to contact Clarke for his side of the story are not satisfactory. Whilst it is true to say that McCann had no power to compel Clarke to answer questions, McCann’s suggestion that there was no need to do so or that the inquiry was limited to Ashbourne is unsatisfactory. The possibility that Clarke would not answer questions is no excuse for not even requesting him to do so.

9.2 Given Clarke’s clear intimation, reinforced by the stance adopted by his legal adviser, we accept the reasons given by both the ACB and the DPP for not seeking to pursue Clarke. However, as the hearings of this Committee revealed, Clarke’s evidence was clearly relevant to the issues. He was able to describe what happened between himself and Ashbourne, the basis upon which he discontinued his action against Atkinson and how Clarke was, in his own colourful language, “rat f’d by his enemies in the Labor Party”.

Term of Reference 10

Whether the processes undertaken in response to the issues up to and including the provision of the report prepared by Mr McCann were reasonable and appropriate in the circumstances.

Conclusion

10.1 The processes were neither reasonable nor appropriate.

10.2 When he first became aware of the allegations, Premier Rann should have placed the matter in the hands of the ACB. Had he done so, the initial interview with Ashbourne would not have been bungled and police would have carried out a thorough investigation at a time when issues were fresh in the minds of witnesses.

10.3 The Premier severely compromised criminal proceedings and other Ministers acted improperly by not promptly reporting matters to police but ordering the McCann Inquiry.

10.4 The McCann Inquiry was so grossly bungled that the jury in Ashbourne’s trial was prevented from hearing the full facts of the matter. Moreover, the seven month delay in reporting the issue to the ACB jeopardised and compromised both police investigations and the subsequent trial.

10.5 The McCann Inquiry was flawed in that it did not thoroughly examine or test the evidence which it gathered and it failed to interview all relevant witnesses or gather all relevant material.

10.6 We accept the view of the Crown Solicitor that the police investigation was seriously compromised by the delay of seven months between the time when the McCann Inquiry began and the matters were finally reported.

10.7 The conclusion of the McCann Inquiry to the effect that “further investigation” should not occur because it would be “expensive and … unwarranted” was flawed and wrong. This conclusion presumed (wrongly) that further inquiries would prove fruitless.

10.8 McCann’s refusal to conduct further investigations on the ground that “it would be expensive” was wrong in principle and inconsistent with the most elementary principles of good public administration.

Term of Reference 11

Whether there were any material deficiencies in the manner in which Mr McCann conducted his investigation of the issues.

Conclusion

11.1 The deficiencies in the McCann Inquiry were many:
• As already noted, the McCann Inquiry was “grossly bungled” and the Crown Solicitor referred to it as “an inept investigation”
• McCann’s interview with Ashbourne was flawed. The typed record is itself incomplete with general statements like “He then described some background” It should have been a verbatim record.
• He appears to have accepted Ashbourne’s explanations and accepted without question the carefully-crafted expost facto notes of Ministerial Advisers Glover and Wall.
• He failed to report the matter to the police.
• He failed to engage competent investigators
• He failed to interview Karzis.
• He accepted without question Atkinson’s demonstrably false statement that Atkinson was unaware that board positions were offered to Clarke in connection with the discontinuance of the defamation action.
• He failed to provide adequate explanation as to why he chose to accept Atkinson’s view of events and not Ashbourne’s.

Term of Reference 12

Whether it would have been appropriate to have made public the report prepared by Mr McCann.

Conclusion

12.1 The McCann Report itself stated:
“Because of the potential for causing harm to people who have not had the opportunity to respond to things attributed to them by others, I do not believe it would be appropriate to publicly release this report or its attachments.”

12.2 This statement was politically convenient. The Premier knew the explosive subject of the report which left many questions unanswered. He would surely have known that the release of the report would excite considerable community and media interest. No doubt, Premier Rann was able to accept McCann’s recommendation with alacrity.

McCann’s above-quoted statement is also a curious admission of the inadequacy of the Report itself. He acknowledged that some people had not “had the opportunity to respond.” Surely, the solution to that deficiency was to give those (unnamed) people an opportunity to respond, rather than using it as a reason to suppress the Report itself.

12.3 The McCann Report should have been released when it was first issued, viz, on 2 December 2002. In our view, the Report should have been promptly released by the Premier as soon as it was delivered. As it was, the incident itself and the results of McCann’s (albeit flawed) inquiries should not have been covered up. Openness and accountability demanded that the Report be released.

Term of Reference 13

The matters investigated and all the evidence and submissions obtained by and any recommendations made by the Anti-Corruption Branch of the SA Police.

Conclusion

13.1 The Select Committee did receive and review the extensive evidence collected by the ACB and had the benefit of the testimony of Superintendent Peter Symons who was, at the relevant time, seconded to the ACB. He personally managed the investigation.

13.2 The only significant impediment to the police investigation was the refusal of the Attorney-General to waive legal professional privilege in respect of documents relating to the settlement of Clarke’s defamation action against him.

13.3 If those documents contained no inconvenient or incriminating material, we might have expected the Attorney-General to waive the privilege. As he refused to waive it, the Committee can only surmise that the documents would not have supported the claim that there was no quid pro quo for the mutual discontinuance of the action.

Term of Reference 14

Whether Mr Ashbourne, during the course of his ordinary employment, engaged in any (and, if so, what) activity or discussions to advance personal interests of the Attorney General and, if so, whether any Minister had knowledge of, or authorised, such activity or discussion.

Conclusion

14.1 Ashbourne’s discussions with Clarke are outlined in some detail earlier in this Report. In essence, Ashbourne said that, if Clarke discontinued the defamation action, he (Clarke) would be appointed to two government boards or committees. Although the offer was made by Ashbourne in an effort to appease Clarke and to bring him and his supporters back into the “Labor fold”, it undoubtedly benefited not only the ALP but also Atkinson, who was relieved of the risk of adverse findings or an adverse result in the action. True it is that he had received pro bono legal assistance from Labor colleagues (Tim Bourne, solicitor and Chris Kourakis, barrister) and might not have been at risk of incurring legal costs, he did face the possibility of having to personally pay damages to Clarke and Clarke’s legal costs. Accordingly, although Atkinson’s pecuniary interests may not have been Ashbourne’s motive, his actions in securing Clarke’s agreement to discontinue the action had that effect.

14.2 There is no doubt that Atkinson was aware of Ashbourne’s dealings with Clarke. The statement of Atkinson’s political aide, George Karzis, proves that. It will be recalled that Karzis was present at a meeting between Ashbourne and Atkinson in which Karzis heard Ashbourne say that Clarke wanted positions on government boards and/or committees and Atkinson was “flabbergasted and disturbed” by the statement. Karzis also said that, when the question of offering board positions to Clarke had been raised, Atkinson said “Do what you want to do but don’t do it on my behalf.”

14.3 We conclude that Atkinson did have knowledge of and gave his approval to Ashbourne’s proposal.

14.4 The notion that Ashbourne’s dealings with Clarke were undertaken merely for the “rehabilitation” of Clarke into the Labor Party became a recurring theme of all those who wished to play down the seriousness of Ashbourne’s behaviour.

14.5 It was convenient for Ashbourne, Atkinson and government supporters to say that Ashbourne was only proposing to Clarke that he would be rehabilitated in exchange for discontinuing his action. This “line” was swallowed by McCann and by the Auditor-General.

14.6 It is almost certain that none of them would have been so gullible if they had the benefit of hearing Ralph Clarke’s account. Clarke’s price for discontinuing the action was not a bland commitment that he’d be “rehabilitated”. He wanted (indeed, demanded) a more tangible benefit, viz, paid positions on two government boards.

14.7 It is noteworthy that, when the issue was first raised by Cressida Wall with Treasurer Foley, the talk was not of “rehabilitation”. If it had been so benign, Foley would not have exploded, and the Premier would not have summoned a virtual council of war. It appears that the notion of “rehabilitation” emerged from the crisis meetings on 20 November 2002. It may have been that Ashbourne concocted the story to exculpate himself.

14.8 It is clear that what emerged from the crisis meeting on 20 November was carefully scripted. A typewritten “file note” prepared by the Premier’s legal officer, Sally Glover, is a prime example. – see Attachment C to the McCann Report. According to that note, Ashbourne said that “it was in the interests of the Party that Ralph be rehabilitated” but that “he had not directly offered Ralph Clarke … any position” (underlining added). This was mere sophistry on Ashbourne’s part. He could not have “directly” offered the appointments because he hadn’t teed them up. But Ashbourne had set about finding them; hence his request to Cressida Wall.

14.9 In a legal sense, Ashbourne was not in a position to provide “ rehabilitation” or readmission to the ALP. He was not a party official. But there is no gainsaying the fact that he was in a position of influence. He could “make things happen”. If that were not the case, Clarke would not have bothered with him. Moreover, as Sally Glover recorded:

“The Attorney said that he had assumed that Randall was acting with the authority of the Premier”.

14.10 It is also interesting to read the Premier’s carefully-crafted position set out in his letter of 20 November.

In that letter, the Premier sought to distance himself from Ashbourne by saying:

“ … unbeknown to me and without my concurrence or authority, a member of my staff … had spoken to … Clarke …”

If the Premier believed that Ashbourne had merely been offering to “rehabilitate” Clarke, he would not have to go to such lengths.

Nor would Deputy Premier Foley have been suggesting that the “Attorney-General should stand down.”

Term of Reference 15

Whether Mr Ashbourne undertook any and, if so, what actions to “rehabilitate” Mr Clarke, or the former Member for Price, Mr Murray DeLaine, or any other person into the Australian Labor Party and, if so, whether such actions were undertaken with the knowledge, authority or approval of the Premier or any Minister.

Conclusion

15.1 Ashbourne took two steps to facilitate Clarke’s restoration to Labor ranks. The first was his advice to Atkinson on at least two occasions of the proposal that Clarke be given positions in exchange for his discontinuance of the defamation action. He was not discouraged by Atkinson whose attitude was, in effect, “do what you like so long as I am not implicated”!

15.2 Second, on 19 November, only a few days after the discontinuance, Ashbourne began the process of seeking boards to which Clarke might be appointed. His quest was short-circuited when Foley’s Chief of Staff recognised the grave irregularity of the proposal.

15.3 The Premier, in his various public statements and in his evidence at Ashbourne’s trial, says that Ashbourne was not authorised by him to make the offer which Clarke says was made. The Select Committee received no evidence to the contrary. However, to say that Ashbourne did not have the express authority of the Premier is not the end of the matter. The fact that very senior people like Atkinson and Clarke assumed that Ashbourne did have the Premier’s authority illustrates the significance of Ashbourne in the government. His role as Senior Adviser may not be powerful in the strict hierarchy but because of his experience and his seniority - the Premier said he had known Ashbourne for 20 years and that he was “terrific” . The Premier clothed Ashbourne with the appearance of power and authority but if Ashbourne erred, the Premier was able to deny specific knowledge.

Term of Reference 16

The propriety of the Attorney General contacting journalists covering the Ashbourne case in the District Court, during the trial, and the nature of those conversations.

No evidence was received on this topic.

Term of Reference 17

With reference to the contents of the statement issued on 1 July 2005 by the Director of Public Prosecutions, Mr Stephen Pallaras, QC:
a. what was the substance of the “complaint about the conduct of the Premier’s legal advisor, Mr Alexandrides”;
b. what was the substance of the “telephone call made [by Mr Alexandrides] to the prosecutor involved in the Ashbourne case”;
c. what were the “serious issues of inappropriate conduct” relating to Mr Alexandrides;
d. whether the responses of the Premier, the Attorney General or any Minister or Mr Alexandrides or any other person to the issues mentioned in the Director of Public Prosecutions’ statement were appropriate and timely; and
e. whether any person made any statement concerning the issues referred to in the Director of Public Prosecutions’ statement which was misleading, inaccurate or dishonest in any material particular.

The DPP’s statement issued on 1 July 2005 in Annexure 6 to this Report.

Conclusion

17.1 The background to this Term of Reference relates to the Ashbourne trial in the District Court presided over by Judge Michael David. The Premier was scheduled to give evidence for the prosecution. Before the trial commenced in the presence of the jury, a voir dire hearing was conducted to determine whether Ashbourne’s interview with McCann, was admissible. On 7 June, the judge ruled that the record could not be led in evidence. The judge also made an order suppressing the publication of the entire McCann Report.

17.2 Nick Alexandrides was (and is) a member of the Premier’s political staff. He is a lawyer. He was present when the judge made his ruling. Later that date, Alexandrides telephoned Tim Heffernan, an officer in the office of the DPP, who was instructing prosecuting counsel, Geraldine Davidson. Mr Heffernan made a detailed note of the conversation. The complete note is Annexure 4 to this Report. The content and tone of Alexandrides’ comments are captured in the following brief extract from Heffernan’s note:

“The message is that this is a fucking political prosecution and you know it and the message is that if you fucking don’t tell me how?/do something?

"… I will fucking go to the Conduct Board’. The effect of the comments about the Conduct Board were that if we did not inform the Premier (and from his aggressive tone I took him to mean immediately) as to what he could say if it were to be suggested that RA [Ashbourne] acted on his instructions – or that if we fail to get the Premier latitude on the voir dire ruling that he would go to the Conduct Board about failing to protect the interests of our witnesses.

17.3 Although Alexandrides later apologised to Heffernan for this outburst, we find that it was an outrageous, unprofessional and reprehensible attempt to influence an officer in the course of his duty.

17.4 The DPP, Stephen Pallaras QC, regarded Alexandrides’ conversation as “an improper attempt to threaten a member of the prosecution team”.

17.5 Mr Pallaras considered that Alexandrides’ action created “the perception” that the Premier’s office “was interfering in an inappropriate way with the prosecution of a politically sensitive case.

More directly, Pallaras described Alexandrides’ conduct as follows:

• “I took it as an attempt to improperly influence the conduct of the prosecution”.
• “it was inappropriate and improper"
• “this conduct was outrageous.”

17.6 Mr Pallaras wished to draw to the attention of the Attorney-General the fact that Alexandrides had made inappropriate contact with Heffernan. He telephoned the Attorney-General on the morning of 9 June. When he arrived at the office, the Attorney’s Chief of Staff arrived with Minister Zollo. The DPP refused to reveal his concerns to Minister Zollo and the meeting terminated. Clearly, Alexandrides was “tipped off” because he telephoned Heffernan at court and asked him if he had complained about his earlier conversation. Later that day, Pallaras sent a long memorandum marked “private and confidential” to Atkinson expressing his concerns about Alexandrides: see Annexure 5 to this Report.

17.7 The contemptuous manner in which the Rann government treats the DPP is reflected in Atkinson’s boast to Parliament in July 2005 that he had not even read the Pallaras memorandum.

17.8 In a self-serving letter, Alexandrides made the claim
“Nothing I said or did could reasonably give rise to a perception of interference.”

Pallaras correctly described that statement as “totally inaccurate”. He also described Alexandrides’s statement as “ingenuous” and “a distortion”.

17.9 The DPP’s memorandum was leaked to elements of the media with Alexandrides’ answer with the obvious intent of minimising the political fallout. Not surprisingly, the DPP was outraged that his initial attempt to contact the Attorney-General was leaked to Alexandrides and that the content of his memorandum was also leaked. To add insult to injury, the government accused Mr Pallaras of leaking; a charge he vehemently rejected.

Terms of Reference 18 and 19

18. Whether it would be appropriate in future to refer any credible allegation of improper conduct on the part of a Minister or ministerial adviser (that has not already been referred to the police) to the Solicitor General in the first instance for investigation and advice.

19. If the reference of such an allegation to the Solicitor General would not be appropriate (in general or in a particular case) or would not be possible because the Solicitor General’s absence or for some other reason, who would be an alternative person to whom it would be appropriate to refer such an allegation in the first instance for investigation and advice.

Conclusion

18.1 The short answer to this proposal is in the negative. Until such time as South Australia has an Independent Commission against Corruption, all allegations of improper conduct on the part of a Minister or Ministerial adviser should always be reported to the Anti-Corruption Branch of SAPOL.

In the event that the conduct is deemed by police and/or the Office of the DPP not to warrant prosecution, the matter should be referred to an independent counsel for investigation and report. The Solicitor-General is the government’s own legal adviser.

In the present case, the office of the Solicitor-General was vacant when the issues first arose. Even if Mr Selway’s successor had been in office, he would have been disqualified from acting by reason of the fact that he was Atkinson’s pro bono counsel in the Clarke/Atkinson defamation action.

Term of Reference 20

Whether Mr Alexandrides assisted in framing the Terms of Reference for the Inquiry proposed by the Government in the resolution of the House of Assembly passed on 5 July 2005.

Conclusion

20. The Select Committee invited Mr Alexandrides to comment on this Term of Reference but he declined the offer to do so. We are not able to say who framed the terms of reference for the government inquiry which was never established. However, it is clear that the terms were restrictive and designed to reduce the potential for findings adverse to the interests of the Labor government.

Term of Reference 21

What action should be taken in relation to any of the matters arising out of the consideration by the Inquiry of these terms of reference.

Conclusion

21. See the following Section of this Report.


PART 9

Recommendations:

1. That an Independent Commission against Corruption be established in South Australia.

2. That the Premier be censured:
(a) for his failure to promptly report to the Anti-Corruption Branch of SAPOL the substance of the allegations made by Cressida Wall on 20 November 2002.
(b) for his 7 month delay in informing the Parliament or the people of South Australia of the events which led to the appointment of the McCann Inquiry or of the results of that Inquiry.

3. That Attorney-General Atkinson be censured:
(a) for failing to tell the truth about his knowledge of Ashbourne’s offer of board positions
(b) for authorising Ashbourne’s offer to Clarke
(c) for failing to dissuade Ashbourne from pursuing the said offer,
(d) for adopting the attitude that Ashbourne could do as he liked so long as it didn’t involve himself (Atkinson)
(e) for acting in clear breach of clause 2.4 of the Ministerial Code of Conduct
(f) for not acting in accordance with proper standards of honesty and integrity and
(g) for engaging in conduct which rendered him unfit to hold the office of Attorney-General

4. That the Ministerial Code of Conduct be amended to include a further reminder that the Premier and all Ministers should duly report to the Anti-Corruption Branch any conduct which might arguably be deemed to involve corruption.

5. That a specific Code of Conduct for Ministerial Advisers and political staff be promulgated.

6. That Section 5 of the Whistleblowers Protection Act be amended to require explicitly that, where a Minister becomes aware of information relating to fraud or corruption, the Minister is required to pass the information on to the Anti-Corruption Branch of the police force (or to an independent anti-corruption commission, if one is in existence).


PART 10

ANNEXURES

1. Report dated 2 December 2002 by W McCann to the Premier and attachments thereto comprising:
A. Letter dated 20 November 2002 from Premier to McCann to W McCann.
B. File note of meetings, 20 November 2002.
C. File note of meetings, 20 November 2002.
D. File note of conversation between C Wall and S Glover, 20 November 2002
E. Record of interview between W McCann and Ashbourne 21 November 2002
F. Record of interview between W McCann and Attorney-General, 22 November 2002
G. Letter Deacons (solicitors) to McCann, dated from 29 November 2002

2. Letter dated 20 December 2002 from Auditor-General to Premier

3. Note by T Heffernan of his telephone conversation with N Alexandrides, 7 June 2005

4. Memorandum dated 9 June 2005 from DPP to Attorney-General

5. DPP, Media Statement dated 1 July 2005

6. Letter dated 28 September 2005 from the Office of the DPP to the Select Committee

Source: Hansard

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