TREASURER, AND SPECIAL MINISTER OF STATE
Motion of Censure
Debate resumed from an earlier hour.
The Hon. MICHAEL GALLACHER
(Leader of the Opposition) [2.44 p.m.]: I speak in support of the censure motion of the Treasurer moved by the Hon. Matthew Mason-Cox. I start by congratulating the Hon. Matthew Mason-Cox on the clear way in which he gave the facts—no semantics, no theatre, no playing to the audience. He put the allegation clearly, reflecting how seriously the Opposition views this matter. These questions need to be answered by the Treasurer. Members should compare the contribution of the Hon. Matthew Mason-Cox with the theatrics of the Treasurer in his contribution.
A censure motion, short of a vote of no confidence, is arguably one of the most serious motions that can be put in regard to any member. It is important for members to consider this motion in that light and to take every opportunity to clarify any uncertainty that exists. The motion is clearly about the behaviour, conduct and answers that the Treasurer has given to this House of review where members have sought information, as they are entitled to in reviewing decisions that governments make. The Treasurer's contribution was five minutes of all-out attack on the shadow Treasurer, Michael Baird, from the other place, which we know contravenes the standing orders of this House, and then 15 minutes of explaining the bid process in relation to the sale of NSW Lotteries.
It is apparent that at no stage did the Treasurer actually read the censure motion and see that the motion is predicated on the comments he made on 21 April in this House, those comments being, "No complaint has been made by any of the unsuccessful bidders about the Lotteries sale process". Today we get further information. We hear about formal complaint processes as opposed to non-formal. We hear about the varying types of bids that take place in terms of those that comply and those that do not comply. It is interesting to note that the Government is more than happy to sit down, examine and indeed award such an important contract based on a non-complying bid—a bid that is outside the rules set by this Parliament—but when it comes to the complaint process the Government simply ignores any complaint that is made, in writing or otherwise, unless it is in a particular form.
The Government will consider matters in relation to the bid that do not necessarily conform and will award such a bid on a non-conforming application, however, if someone wants to complain, they have to follow a very strict and significant regime. The Treasurer knows that his office received correspondence—because it is clearly spelt out in the matters that he tabled—but at no stage did he suggest that he took steps to seek information from the complainant in those letters to clarify what continues to be a very significant public matter of concern relating to the bid process. When it comes to the bid the rules do not necessarily apply but when it comes a complaint about the process afterwards, because the formal guidelines were not followed, it therefore does not constitute a complaint and the Treasurer has the ability to disregard anything that is said.
On 21 April the Treasurer told this House, "No complaint has been made". He did not say no formal complaint—no informal complaint, no complaint of any sort. He just said, "No complaint has been made". The Hon. Matthew Mason-Cox is quite right in seeking from the Treasurer—he has continued to seek this with other members of the House—some certainty, some clarity, in relation to those comments. But at every opportunity that the Treasurer has had in this House he has shied away from giving any additional information to the House.
Earlier today the Treasurer tabled a couple of letters. One particular letter caught my eye: the one on which the Treasurer based his allegation that there was no formal complaint per se. It is important for members to have a look at that document tabled by the Treasurer earlier today. If one studies the document one will see an address—an address that uses GroupWise and appears to also include an address relating to Governor Macquarie Tower. I was concerned about this address on the document, which is titled "Andrew Clennell". So I printed an email in my office just a short time ago to see if a similar address appears as a footer on email documents printed in the Parliament. Apart from the specifics, email documents printed in the Parliament show a GroupWise address—which I do not intend to place on the record; there is no need to do so.
However, I draw members' attention to the document tabled by the Treasurer to which I have referred. The document indicates an address, on a GroupWise system, that appears to be Governor Macquarie Tower. It also indicates that the document was received at that address on 23 April 2010. Over the last few weeks and days the Treasurer has been at pains to talk about noticing Twitter pages from Mike Baird, about noticing media comments, and about noticing comments that have been put in the public domain by members on this side of the Chamber—and, I suspect, other members of the House—expressing concerns about probity. Yet it would appear that the Government had in its hands this letter, with 23 April showing as the received date, which could well have clarified for the House at a much earlier stage the matters that are now the subject of this censure motion.
I strongly suggest to this House that the Treasurer needs to come into the Chamber to explain to the House exactly when this letter came into the hands of the Government. In my view the Government has knowingly withheld this information, not only from the Parliament but from the public domain, in relation to when the Treasurer himself says he became aware that no formal complaint had been made. The Treasurer may well have cut and pasted at the top of the document—as we see from the document, information has certainly been cut off the letter—but there is an address at the foot of the document that also shows the date 23 April 2010, which would indicate strongly that the Government came into possession of this letter much earlier in this debate and therefore it has potentially withheld this information from the Parliament and therefore from the public domain.
It simply exemplifies that the Government has been playing politics with a billion-dollar issue, as the Treasurer continues to refer to it. If the public is to have confidence in the Government transparency should be utmost in this process. If this address and the date are correct and the Government has knowingly withheld this information from 23 April, having only tabled the document in the Parliament on 13 May, there are serious questions about the conduct of the Treasurer in relation to this withholding of information.
I believe the Hon. Matthew Mason-Cox is quite right to move this censure motion in relation to the Treasurer. The first part of the motion refers to the Treasurer's statement that no complaint was made. The second part of the motion refers to the Treasurer's failure to make statements about how the complaint was addressed and his failure to provide information about it. The third part of the motion asks the House to note with concern the Government's lack of accountability to the people of New South Wales. If the document was received on 23 April I would like to think that the Government can provide a clear answer on that, and I hope it will do so. Then we will have some certainty in regard to that.
The first part of the motion states that the Treasurer said that no complaint had been made. At no stage did the Treasurer indicate with clear distinction what the Government considers constitutes a formal complaint. He made reference to "formal complaint", but at no stage did he clarify that for the House. He was playing with the House when he did that. The Treasurer has not complied with the second part of the motion, and he has not complied with the third part of it. The final part of the Hon. Matthew Mason-Cox's motion refers to the Treasurer's lack of preparedness to provide all the relevant information to the House. Given that the information has been requested time and again, and given that the Treasurer knows that this matter, having been raised in the media, would be raised in the House, he would have had ample opportunity on Tuesday this week to make a ministerial statement, or to even use a Dorothy Dixer in question time to clarify the issue. But, no, the Treasurer has continued to play with the issue—indeed, he has continued to play with the issue right up until today, when he finally released the document.
I challenge the Government to provide us with the date on which it came into possession of this document. There may well be a clear answer. But given that the document appears to have a GroupWise receipt date that could well fall within the purview of this place or indeed Governor Macquarie Tower, the Government needs to clarify the issue. This is about community confidence. We are talking about a $1 billion project.
Earlier in this debate it was suggested that the Opposition does not understand the basic rules of bidding. I would have thought it was appropriate that the Government observe at least some basic rules in terms of probity, and that once the Government becomes aware that complaints have been made, if those complaints do not comply, it takes steps to get to the bottom of those complaints and sort them out. It should not simply ignore them, or pretend that the matters complained about never took place. Instead, the Government simply says, "I'm sorry, your complaint didn't comply." It does not go into the facts or investigate it. The complaint goes into the wastepaper bin or the shredder. However, it appears that that has not occurred in relation to this issue.
I believe the Hon. Matthew Mason-Cox has been quite fair in this debate. He has not gone to the extent of talking about votes of no confidence; he has simply put the case that on a number of occasions the Opposition has sought information from the Treasurer to bring this matter to a head. On every occasion the Treasurer has sought not to answer our questions, knowing all the while that there are processes within the Government's control that could have allowed him to answer our questions, but he elected not to do so. Rather, he elected to play politics with the issue. It is incredibly disappointing that the Treasurer has spent so much of his time talking about Mike Baird and about the bidding process rather than talking about matters that I believe are far more significant, to clarify the issue once and for all so public confidence can be returned.
The Hon. JOHN HATZISTERGOS:
The Hon. JOHN HATZISTERGOS (Attorney General, Minister for Citizenship, Minister for Regulatory Reform, and Vice-President of the Executive Council) [2.57 p.m.]: This motion has nothing to do with what is in the best interests of the State; it has everything to do with what is in the Opposition's political agenda. The Opposition's sole pitch for government is to hysterically claim, time and again, that every move, every action, and every decision the Government takes is simply wrong. It is a very simple strategy; I will give Opposition members that. Indeed, it is a very consistent strategy, one might say, to say that everything is wrong. But if we look at the multitude of different positions the Opposition has taken over this specific issue over the past year only one simple, binding thread emerges: the Opposition's absolute determination to paint this sale as a failure, to do what it can to frustrate it, and to talk down the future of NSW Lotteries and, with it, the future of the State. The Hon. Matthew Mason-Cox recited some history. Perhaps I should also recite a bit of history to relay some of the interesting aspects of the way this matter has proceeded. When the legislation first came before the Parliament the Opposition opposed the proposal to sell NSW Lotteries—even though, of course, it had been the Opposition's policy at the last election.
The PRESIDENT: Order! The Leader of the Opposition was heard in silence when he made his contribution and I expect the same courtesy to be extended to the Leader of the Government.
The shadow Minister in the other House had this to say about the matter:
The Opposition does not oppose the legislation on philosophical grounds or matters of principle The sale of NSW Lotteries was a Coalition policy in the lead-up to the 2007 election.
Then he went on to say:
In 2006, in a very different credit and economic environment worldwide, NSW Lotteries was conservatively estimated to be valued in the order of $800 million NSW Lotteries is now worth between $500 million and $600 million Clearly, now is not the best time to offer this product in the marketplace.
That was a very clear statement by the Opposition in its opposition to the legislation when it first came before the Parliament. "Now is not the right time" was said previously in relation to other attempts to privatise assets. I reiterate the comments by the shadow Minister in 2009:
NSW Lotteries is now worth between $500 million and $600 million Clearly, now is not the best time to offer this product in the marketplace.
The shadow Treasurer in the other House followed and repeated those statements. He said:
The last thing we want is a fire sale. Before the last election the price of this transaction was costed at around $600 million. Varying prices are available from brokers in the market through to the Government's own spokesperson. Let us wait and determine whether we are likely to get the best possible value. We will have only one shot at this transaction. I have seen no reserve price in the budget papers. It should be clearly understood by the Government that it should not sell any asset when it decides to do so without establishing a maximum and a minimum sale price. Any transaction should not go ahead if a minimum price cannot be achieved.
That is what the shadow Treasurer in the other House said at the time the legislation was introduced. What happened subsequent to that? The newsagents were running a campaign, and the business sector was questioning the so-called liberal credentials of the Opposition and its genuine commitment to taking a decision that was in the best financial interests of the State. Not to be outdone, the shadow Minister for Finance in this House came to the fore and had this to say in relation to the transaction:
prior to the 2007 election the New South Wales Coalition announced that it would privatise State lotteries, with expected proceeds at that time of more than $800 million. That figure is likely to be somewhat less, particularly after the global financial crisis.
That was in tune with the consistent Opposition thread: It is all wrong. The timing is wrong. We are not going to get enough money out of it. Talk this sale down. The campaign started and eventually the Opposition was forced to change its tune. As everyone knows, the sale proceeded—it is not a secret—but for the Opposition it did not go to script because, as members would be aware, the Government managed to get a net $850 million for the sale. This was considerably more than the shadow spokesmen in the other House were arguing was the sale price and the reason they were not prepared, initially at least, to allow the sale to proceed. The figure that was derived through the efforts that were undertaken by the Treasurer, on behalf the Government, exceeded market expectations and completely destroyed the Opposition's clumsily planned political strategy. Indeed, it was recognised as that by independent commentators. I quote from an article in the Financial Times
of 3 March 2010, which said:
Tatts shares fell 7 per cent on concerns that the group may have paid too much for the business.
also published an article on 3 March 2010, which said:
The bumper price surprised market observers who had been anticipating a winning bid of $600 to $650 million.
I do not know who the market observers were—perhaps Mike Baird, the shadow Minister in the other House—who kept sprouting that figure around. The Sydney Morning Herald
, that great chronicle of record—
The Hon. Greg Donnelly:
One of your favourites.
The Hon. JOHN HATZISTERGOS:
One of my favourites, yes. On 3 March 2010 the Sydney Morning Herald
—it actually had something nice to say—said:
The Government had initially hinted at a price range of $500 to $600 million
That was actually the Opposition—
the $850 million is in another league.
In other words, well done to the Government! That is as much praise as you can get from the Sydney Morning Herald
these days. So, with its political strategy and its economic credibility completely in tatters, what did the Opposition do? Did it finally smarten up, sit down and come up with a decent idea on policy for improving the bottom line of the State? Of course not! It went right back into the attack mode for which it has been notorious. As I said, the consistent Opposition theme: Wrong, wrong, wrong. Everything is wrong. You get a good price and you are still wrong. You want to sell something and you are still wrong.
What was the next stage of this cleverly crafted political strategy that the Opposition took? Apparently the easiest track was to cling onto the coat-tails of a disgruntled and unsuccessful overseas backed commercial organisation and to criticise the Government for getting such a good deal. Members will recall that the way these particular matters came to light was not through a complaint to the probity auditor, it was not from an application to the court to prevent the sale from proceeding; it was being laundered through newspaper articles. You would think that anyone who was going to bid for a project of this size, who had a legitimate grievance —with millions of dollars at stake, a lengthy period in running a lottery system, a significant impact on the future posterity of the company, knowing the impact that would have on the share price of the company concerned—would know how to ventilate that grievance through the proper process. And if they did not know, you would think they would have been able to find out. On 1 November 2009 a bid process letter was provided by Goldman Sachs JBWere—this is the probity order—and this is what they said to all the people who were bidding:
Any probity concerns you may have about the process must be submitted (in appropriate detail) to the probity adviser in writing by e-mail, with a copy provided at the same time to Goldman Sachs JBWere.
In addition to that, the need to direct complaints to the probity adviser was reflected in a further letter dated 11 March 2010 from the lawyers representing the Government, Gilbert and Tobin, to the lawyers Baker and McKenzie, representing one of the bidders, which read:
Apart from probity questions which should be directed to the probity adviser, as the process in relation to NSW Lotteries has now ended, we are instructed to request that you direct any further correspondence on behalf of your client in relation to this matter to us.
Furthermore, an email from Goldman Sachs JBWere stated that as the transaction process had been completed "further questions should be addressed to the probity adviser". So not once but three times these people were told the proper process to lodge a complaint, and to this very day there has not been one. These are not some amateurs. These are pretty sophisticated organisations bidding for major public assets with significant impacts on the potential share prices of their own companies, and they were told of the process to be followed if they had a legitimate grievance. The only process that appears to have been taken is a process that has resulted in a series of spurious claims being made through a series of avenues other than that mentioned in those particular letters.
Let me go through the nature of the particular strategy that was embarked upon. The Opposition and media reports would suggest that the author of the complaint was a corporation by the name of GTECH. Members will have heard that name as it has been used in various newspaper articles and will have been using various materials ascribed to it. This company was not in fact making a bid itself. It would, however, have derived significant financial benefit had the unsuccessful bidder, Premier Lotteries, been successful. It would have benefited because GTECH is a technology provider and has in place a long-term exclusive contract to provide facility and management services to Premier Lotteries through its Asian network.
GTECH had a significant commercial interest in the tender being awarded to Premier Lottery. As I said, GTECH was not a partner in the bid. However, it had an exclusive arrangement to provide facilities and management services to Premier Lottery, the unsuccessful bidder. Therefore, if Premier Lottery's bid had been successful, GTECH would have derived significant financial benefits.
Before anyone ran around supporting the interests of this corporation, one would have thought it would be important to investigate the corporation's form. I will speak about that in a moment. The Opposition seems to have allowed itself to be used as the ventriloquist's dummy of this overseas-backed commercial organisation without asking a few basic questions. For example, if GTECH or its partners had a genuine grievance, why did they not choose to have these matters ventilated through the appropriate probity channels, in accordance with the advice they were given on numerous occasions? Why go to the newspapers and not to the courts? Another interesting question relates to the form of this company, which, as I said earlier, anyone would be able to find out by making a few Google inquiries about the company's track record.
I will outline to the House some background about GTECH. On 27 September 2007, according to Dow Jones Newswires, a Greek court rejected an application for injunctive relief from none other than GTECH Corporation, which had reportedly lost a bid to provide technology services to a gaming monopoly, OPAP S.A. According to the Poland Business News service on 28 April 2008, GTECH had organised and then cancelled a press conference after the Polish Ministry of the Treasury refused a contract for GTECH to provide the nation's lottery services because of irregularities in its bid. According to the Associated Press newswire on 2 March 2000, a New Hampshire Superior Court judge declined to issue a preliminary injunction sought by none other than, wait for it, GTECH, which had sued when it lost its contract with the State's sweepstakes. I could recite other instances where the company has employed these strategies. Opposition members can look it up for themselves. Here we have a most transparent process that enables any potential party to the transaction who wants to put in a complaint to be able to do so. Instead, GTECH-inspired claims are laundered through the newspapers and are taken up by Opposition desperadoes in an attempt to discredit the Government.
The first claim they made was that the successful tender was not the highest bid. That claim evaporated within about 12 hours. Then there was a claim that somehow the successful bid was contrary to the legislation. A flurry of legal advice circulated around the place and then people made claims and counterclaims. Press conferences were conducted and the Opposition was salivating at the prospect of the legislation having to be brought back before Parliament for amendment, which it said it would reject. Do members remember the Opposition's great sense of disappointment when it found out that that would not be necessary? At every opportunity the Opposition has politicised the issue, rather than be constructive about this sale and acknowledge that this transaction was conducted appropriately. The Government said it was happy to have the matter investigated by the Auditor-General. All relevant documents were given to the Auditor-General and the matter was the subject of a report. That still did not stop the Opposition trying to hijack the whole debate and obscure the issues by raising these claims, even though it knew that there were proper channels to investigate issues relating to this transaction, including the Auditor-General and the probity auditor. This issue was best described by the Australian
columnist Imre Salusinszky. All members know Imre; he is very well respected. This is what he had to say about this matter on 24 October 2009:
Tatts did, in fact, lodge the highest bid; that the matter of unclaimed prizes is one of legal interpretation; and that the outcome was good for taxpayers and for the future of the lotteries business.
What the Coalition has done on the way through is sully the reputation of one potential business partner, Goldman Sachs JBWere, while making a certain enemy of the future operator of the state's lottery.
This is what happens when the key element in your pitch for government is that the present incumbent does everything—repeat, everything—wrong.
I could not have put the issue better myself. This whole debate has been characterised by an attempt by the Opposition to outdo itself at every turn. It has talked down the sale price; it has said it is not the right time. When it was pressured into supporting the legislation and all of its expectations were found to be completely wrong, it then put forward claims on behalf of a business partner of an unsuccessful bidder. As I said, those claims, which were laundered through the newspaper, were wrong. Then the Opposition tried to cast aspersions on the Treasurer about a process that enabled unsuccessful parties to have any grievances appropriately addressed. Notwithstanding the fact that the company had many opportunities to prosecute its case through the proper channels, it declined to do so. This motion is a joke, and the Opposition, which has prostituted these arguments in the House, is also a joke.
Reverend the Hon. FRED NILE
[3.16 p.m.]: I contribute to this debate as a crossbench member. I am not a main player, like a member of the Government or the Opposition. I put on record my observations about the arguments in this debate and, in particular, the Treasurer's comments reported in Hansard
on 21 April 2010. I can understand the frustration of Coalition members about what they believe to be unsatisfactory answers by the Treasurer to their questions on the NSW Lotteries sale. They have moved this censure motion because they consider that the Treasurer deliberately misled the House when he said there had been no complaints. As reported in Hansard
on 21 April 2010, the Hon. Matthew Mason-Cox asked a general question about the Lotteries sale and, in particular, referred to the amount of money that was paid for the unclaimed prize revenue. His question did not refer to complaints or concerns. The Treasurer, inferring criticism in the question, I believe, replied in detail:
Let me make a point about probity. No complaint has been made by any of the unsuccessful bidders about the Lotteries sale process.
That was his first statement—that there was no complaint. He went on:
After the transaction not one of the unsuccessful bidders put in a complaint through the processes that are available to them.
Not one of them complained to the probity officers about the transaction.
The Opposition's motion is based on the proposition that the Treasurer misled the House in that answer. Having read the answer and the correspondence, I believe that he gave a correct answer. Those statements are all factually correct. The next question is whether a complaint is the same as an expression of concern. And it is upon that that, in all probability, the Opposition has built its case. On 13 May a Mr Shatter from RSM Bird Cameron, probity adviser—that is, after the censure motion was moved on 12 May, so obviously the Government was seeking confirmation of the reply that the Treasurer gave—wrote:
RSM Bird Cameron in its capacity as a Probity Adviser to the above transaction, has not received any complaints in accordance with the defined process as set out in the "NSW Lotteries Transaction - Request for Binding Offers" document, dated 1 November 2009.
That confirms what the Treasurer said. The Treasurer referred to a second document, which is an email from Andrew Clennell of the Sydney Morning Herald
to Baker and McKenzie seeking clarification of whether there had been any complaint. The email stated:
Hi Michael, Andrew Clennell from the Sydney Morning Herald here. Can you confirm that Baker McKenzie regarded the letter it sent to Gilbert and Tobin concerning NSW Lotteries on March 17 as a formal complaint?
That is the first appearance of the word "formal". The Treasurer did not use that word, but for some reason Andrew Clennell used it in his email. Michael Kunstler, a partner of Baker and McKenzie, replied:
We cannot comment on correspondence between our client and government without our client's instructions except that I can confirm that no formal complaint was made including pursuant to the letter referred to below.
He used the same words that Andrew Clennell used: "formal complaint". The original email sent by Baker and McKenzie to Bryan Pointin, partner of Gilbert and Tobin Lawyers, Park Street, Street, was not a complaint. Copies of the email were sent to six people who were involved in bids for the Lotteries—the Ontario Teachers' Pension Plan and others. A copy was sent to Richard D. Timbs, Deputy Secretary, Commercial Management, NSW Treasury. I will not read the email in its entirety because I believe members have seen the contents. It begins "Dear Bryan" and has the heading, "Concerns concerning offer based on retention of unclaimed prizes". It outlines the procedure that occurred and how the successful offer from Tattersalls included retention of the unclaimed prize money.
Nowhere in any shape or form are the words "formal complaint" used in that email from Baker and McKenzie. The email simply refers to "concerns". I do not know whether the Treasurer has said that he ever saw that email of 17 March. I do not know whether copies of emails sent to a lot of people in Treasury are always sent to the Treasurer—I suppose it depends how Treasury is administered. But one would think if it were a controversial or potentially controversial matter, the Treasurer would receive a copy of the correspondence. Nevertheless, the email refers only to "concerns", and that means that the Treasurer can technically argue that he did not receive a complaint, even if he did see the email. It comes down to whether it was a formal complaint, a complaint or an expression of concern. The answer the Treasurer gave in Hansard
on 21 April is fully supported by the documents. Therefore, there is no basis for the censure motion. The Treasurer can be censured for not cooperating or for not answering questions, but I do not believe there is a basis to argue that he deliberately misled the House on that day.
The Hon. DUNCAN GAY
(Deputy Leader of the Opposition) [3.25 p.m.]: Reverend the Hon. Fred Nile indicated that there might not be an argument that the Treasurer deliberately misled House. Be that as it may, the Treasurer certainly misled the House. I make an expression of concern about Reverend the Hon. Fred Nile's interpretation of this matter. Of course, according his interpretation, that would not be making a complaint. Come on! This is risky, silly semantics. This contemptuous and arrogant Treasurer has misled the House. He was given a chance to purge his contempt of the House and he totally rejected it.
Not only are we disappointed on a daily basis with the behaviour of this Treasurer with his contempt for the rules—and I will talk about that in a moment—but also today we witnessed the Leader of the Government, the Attorney General of this State, totally off the elements of this matter in his contribution to a censure motion on the Treasurer. The Attorney sought to trash the integrity of a company that may have been the losing bidder in this process. This issue is not about winners and it is not about losers, it is about the facts that are before the House. The Attorney General is eloquent and he is good at what he does, but what he did today was dead wrong. He is a man of integrity, and I suspect he winced at the attitude he took in demeaning a company that, because of parliamentary privilege, has no chance of reply. I am not sure that the Treasurer had the same concerns when he deliberately tried to trash the character of the Opposition Treasury spokesman, Mike Baird.
It is not about whether Mike Baird was twittering, it is not about what Mike Baird said, it is about what happened in this House. The record shows that we the Coalition supported the legislation, and the Leader of the Government was accurate when he said that the Opposition had to be dragged screaming into supporting the legislation. Members will recall that the Opposition had real concerns for newsagents and the mum and dad businesses that the Treasurer wanted to sacrifice at any cost. We held out and stopped his privatisation proposal until certain safeguards were put in place.
Reverend the Hon. Fred Nile:
So did we.
The Hon. DUNCAN GAY:
Yes, so did Reverend the Hon. Fred Nile, and I acknowledge that. We would not have been able to hold out without your support. But these are the facts; this is part of the history of what took place. We put in place detailed legislation on the sale process and what should happen, and a number of bidders adhered to it. However, we found out today that, in the Treasurer's own words, there were two sets of rules: first, the legislation that the Parliament passed containing detail, process and probity and, second, another set of instructions along the lines of, as the Treasurer said, "Take your best shot! Go wild!" That is what the Treasurer said in this House earlier today. They were the instructions given to someone. We had something that was worth "x" dollars and the bidding was reasonably similar, yet one organisation played by a different set of rules; one organisation was able to do something that the other organisations could not do.
The genesis of the question asked by the Hon. Matthew Mason-Cox in this House was concern about that matter when it became public. Many people were concerned about the fact that there was a probability that only one of the organisations had the opportunity to submit a bid based on the unclaimed prize money. The Hon. Matthew Mason-Cox asked:
My question without notice is directed to the Treasurer, who we are pleased to see back in the Chamber. When he stated at his press conference that proceeds of the sale of NSW Lotteries were beyond market expectation, was he aware that that was because unclaimed prizes were sold without competition despite it being contrary to his own legislation? Will he explain to the House how he decided that the $150 million paid for the lotteries unclaimed prize revenue was sufficient when a prominent a market analyst suggested it was worth $200 million? Given that legal advice from a partner in a leading Sydney law firm stated in relation to the Minister's lotteries legislation that "the Minister can't override a mandatory requirement in the Act to pay unclaimed prizes into the Consolidated Fund", will he now amend the legislation that he put in place to sell the lotteries?
I do not think that was an inappropriate question given the situation. It certainly was not inappropriate given the concern in the community that this cowboy, that bloke over there—
The Hon. Eric Roozendaal:
Point of order—
The Hon. DUNCAN GAY:
—said, "Take your best shot"—
Order! The Hon. Duncan Gay will resume his seat. I remind him that he is already on one call to order.
The Hon. Duncan Gay:
The Hon. Eric Roozendaal: I have been listening intently to the debate.
You were not here.
The Hon. Eric Roozendaal:
I was listening to it in my office. I have listened to the contributions of the Leader of the Opposition, Reverend the Hon. Fred Nile and the Attorney General, and they were all quite respectful and interesting—
The Hon. Catherine Cusack:
Point of order on the point of order, Madam President.
Order! The Hon. Catherine Cusack will resume her seat. The Treasurer will come to the nub of the point of order.
The Hon. Eric Roozendaal:
If the Hon. Duncan Gay feels the need to refer to other members in this House, then he should address them correctly. He should not use nicknames such as "cowboy", because that is inappropriate. I would have thought that a member of his standing—
The Hon. Catherine Cusack:
Point of order—
Order! I will rule on the point of order. The Treasurer is correct; it is not appropriate for a member to refer to other members by anything other than their proper name or title. The Deputy Leader of the Opposition will bear my ruling in mind as he proceeds.
The Hon. DUNCAN GAY:
Do I get a chance to respond to the point of order?
Order! I have ruled on the point of order.
The Hon. DUNCAN GAY:
I withdraw the statement that the Treasurer is a cowboy. However, he was behaving like a cowboy when he told bidders to "Take your best shot! Go and get wild!" despite the fact that, after careful consideration, this House passed legislation to ensure probity and proper process to stop people like this cowboy of a Treasurer doing this sort of thing. Deutsche Bank's Global Market Research Paper of 12 March 2010 states:
While much has been made of the price paid for the 40 yr NSW Lotteries licence (A$850m) and the premium to both the next confidence in doubling the size of the business by 2014 and the use of the unclaimed prizes to reinvest in the business.
Under the heading "Use of unclaimed prizes" it further states:
We believe the ability to use unclaimed prizes... has been underestimate by the market. There are few constraints on these funds apart from reinvesting in the business in order to enhance the player experience eg seeding of jackpots and expenditure on promotions, products development, distribution, and player communication. This is likely to have the effect of drying top-line growth and replacing some expenditure that would have taken place, particularly the substitution of marketing expenditure.
would reduce the multiples.
Deutsche Bank is saying that this State missed out on a bonus of at least $50 million. Even worse than that was the concern that there were two groups of bidders: one that had to follow the rules that the Parliament approved and another that was able to take its best shot and go wild. That is what prompted the question. We simply asked whether a complaint had been made. The answer in the first instance was that there was no complaint.
The Hon. Eric Roozendaal:
That is right and it is still the case.
The Hon. DUNCAN GAY:
The Treasurer knows that there has been a complaint. No matter how he tries to vilify the Hon. Matthew Mason-Cox and members of the other place, the simple fact is that there has been a complaint. The Opposition gave the Treasurer an opportunity to discharge his culpability—
The Hon. Matthew Mason-Cox:
We gave him five opportunities.
The Hon. DUNCAN GAY:
Yes, we gave him five opportunities. We did not hammer him in the first instance in the way that he would have done in our position.
The Hon. Eric Roozendaal:
I'm still waiting for the hammering.
The Hon. DUNCAN GAY:
Madam President, you ruled when the Leader of the Government was speaking that he should heard in silence. Is there one set of rules for some in this House and another set of rules for others?
Order! There is one set of rules and I ask all members to cease interjecting. A censure motion is an important motion and members with the call should be heard in silence.
The Hon. DUNCAN GAY:
Thank you, Madam President. I appreciate that. The Treasurer has chosen to trivialise the House and not to answer questions. He has also chosen to indulge in personal vilification. Today he has chosen to treat this motion as a joke. He made jokes about the contribution of the Deputy Leader of the Liberal Party to one of the most serious motions that can be moved in this House. It is not the most serious motion; that title belongs to a motion of no confidence. The Coalition chose not to move a motion of no confidence in the Treasurer, despite the fact that many members urged us to do so.
We believe that in this situation a member who is a man of honour would accept that he acted inappropriately. He would discharge his contempt for the House by accepting that he misled the House. This is not about winners and losers. It is not about the sale price. The question is simply whether the Minister misled the House about whether there was a complaint. Members who choose to interpret what happened as an expression of concern, rather than complaint, would trivialise the traditions of this House and fail in their duty to support the values that have been observed in this place during the 22 years I have been here. A member who uses that kind of interpretation to salve his or her conscience before choosing to vote inappropriately on this issue would fail the duty of responsibility expected of every member. Clearly, there has been a misleading of the House, and it has been done by the Treasurer.
The Hon. ROBERT BROWN
[3.40 p.m.]: I was not going to enter into this debate today. Most members in this House would be aware of the Shooters Party's position on censure motions. Those who have been here any time probably will recall my predecessor's attitude towards the two censure motions that the Hon. Matthew Mason-Cox mentioned earlier. The Hon. Matthew Mason-Cox has presented a very fair and detailed argument today. In return, I think the Treasurer has put documentation on the table that at least gives him the benefit of the doubt.
I find it strange that members in this place take the high moral ground and talk about other members using hyperbole and breaking the argument down to semantics. This whole argument is about semantics, is it not? Did he say, did he not say? We have gone to documentation to prove yes he did or no he did not, and we have taken the best part of a private members' day to do it. I am not trivialising it; censure motions are important matters. The Hon. Matthew Mason-Cox did a fine job of trying to argue his case but I do not think the case has been proved.
The Hon. LYNDA VOLTZ
[3.42 p.m.]: This motion is nothing short of astounding. Members of the Opposition have postured in this place that they supported this transaction and have then used every opportunity to imply that they wish to prevent the proceeds being passed on to the people of New South Wales. They have used every opportunity in this Chamber to talk it down. Anyone in business in New South Wales would be a bit worried. People should be on notice that the New South Wales Liberal Party, based on its performance today, does not understand how business works and that it is anti-business. Members opposite have no credibility on this issue whatsoever. If anyone wants proof, all they have to do is look at the statements they have made on the Lotteries sale over time. This is what Peter Debnam said on 11 December 2007:
There is no need for the public sector to own New South Wales Lotteries and I will use these funds to begin the urgent task of drought proofing New South Wales
The member for Manly, Michael Baird, was reported in the Sydney Morning Herald
on 9 April 2009 as saying that the Coalition still believed in selling off New South Wales Lotteries. He was reported again on 17 June 2009 as follows:
The sale of New South Wales Lotteries has been put forward as policy by the Liberal-Nationals Coalition and it is no surprise that we will continue to support that policy.
He is backed up by Patricia Forsythe from the Sydney Chamber of Commerce, who said the sale was a 'significant economic reform'. On 18 August last year, according to the Sydney Morning Herald
, George Souris said:
The Opposition has always supported in principle the sale of New South Wales Lotteries
On the next day, 19 August, on the Ray Hadley show, Barry O'Farrell said:
We haven't changed our position on it. We went to the last election saying it should and could be sold, providing you looked after the small businesses, that is the newsagents, whose livelihood depends upon it.
We have no in-principal objection to the sale of Lotteries.
On 9 September 2009, in the other place, Mike Baird stated:
We have always argued that this was a good policy. There are often claims from the other side about policy not emanating from this side of the House. This is a policy that we have run with for a considerable period and it was in place before the lead-up to the last election.
We continued to advocate it and we are pleased that the Government has undertaken the process. We understand that New South Wales Lotteries is a competitive business and that there is a huge amount of investment and energy required.
It makes sense to transfer this business to experts and to use the income that we receive for other purposes—perhaps the infrastructure that we have heard the Treasurer talk about.
Let us look at the facts. The sale of NSW Lotteries Corporation to the Tatts Group represented the highest and best return to taxpayers from a bidding process that met rigorous probity requirements. The probity advisers, RSM Bird Cameron, have provided an unqualified opinion on the fairness, value for money, accountability, transparency, consistency, confidentiality and security of the bid process. Their report is available on the NSW Treasury website for all to see. I refer to the letter dated 26 March 2010 from RSM Bird Cameron to the chair of the steering committee for the NSW Lotteries project, which stated:
We are satisfied that the NSW Lotteries Request for Binding Offer process complied with the Probity Plan, the Probity Principles contained therein and the Selection Plan.
The letter continues with:
We are therefore able to report to you that we are satisfied as to the Probity of the process for the general Probity requirements from the 30th October 2009 to 26th of February 2010 for the New South Wales Lotteries Request for Binding Offer Process.
We also welcome the review by the Auditor General, as is usual practice for a transaction like this. In return for operating NSW Lotteries exclusively for 40 years, Tatts will pay the Government $850 million, a price significantly exceeding market expectation. When coupled with surplus cash and assets payable to the Government, the total proceeds of the transaction are around $1.01 billion. This is an outstanding outcome for taxpayers. General duty from the sale of NSW lottery tickets will continue to be paid into public coffers—worth some $330 million last financial year. Importantly, the Government will continue to have regulatory oversight for public lotteries in New South Wales and this ensures important community protections.
But the Opposition refuses to accept the advice of the independent probity officer, and its constant attacks on the transaction are just another example of its reckless talking down of the New South Wales economy. Let us just look at the smear the Opposition has attempted to put on unclaimed prizes—and its backdown on whether legislation was required. The reality is that the sale of NSW Lotteries to the Tatts Group will not result in any significant change to the management of unclaimed prizes. Unclaimed prizes will be used for the promotion and growth of the lotteries business for the benefit of players. This will benefit the State through higher Government duty. The use of unclaimed prizes will continue to be regulated by the Minister for the benefit of players under the Public Lotteries Act 1996 and relevant regulations.
Expert legal advice provided to NSW Treasury and the Government is that no legislation needs to be changed. In the face of all this, Mike Baird had to flip-flop embarrassingly on his argument about legislation. After arguing adamantly in public, as we have heard from other members in the Chamber, that legislation was required, he said in a press release on 1 April 2010:
The State Labor Government has contravened the spirit of the law which may mean the legislation needs to come back to parliament
Given that this press release was put out on 1 April, perhaps it was meant to be some kind of an April fool's joke because we may need to come back to Parliament. It is about the spirit of the law; it is no longer about legislation being required, as was mentioned in broad statement about legislative needs. One day the Opposition is adamant and the next day it backs off to try to save face. The reality is that the Opposition has nothing. Let us see this motion for what it is—a slap in the face to business, a slap in the face to the concept of due process and fairness, and worst of all, a slap in the face to the people of New South Wales.
The Hon. MATTHEW MASON-COX [3.50 p.m.], in reply: At the outset, I thank all members who have participated in this very serious debate, the censure of the Treasurer. In particular, I acknowledge the fine contributions of my leader, the Leader of the Opposition, the Hon. Michael Gallacher, and the Deputy Leader of the Opposition, the Hon. Duncan Gay. I note that the Treasurer's defence of this censure motion appears to turn primarily on whether the letter of 17 March, sent by the unsuccessful bidders to the probity auditor, a senior Treasury official and the Government's advisers on the Lotteries sale, was or was not a formal complaint. The Treasurer contends that it is not a formal complaint and therefore cannot be recognised as a criticism of the sales process. We simply do not accept this.
Indeed, the Treasurer went on to attack the shadow Treasurer at length rather than deal with the substantive motion and left that to the Leader of the Government, the Hon. John Hatzistergos. The Treasurer accused the Opposition of not understanding the bid process. He also confirmed that the highest conforming bid and non-conforming bid came from Tatts. In relation to the bid process he made it very clear, as the Deputy Leader of the Opposition said, that it is really a case of informing bidders to take their best shot, to go wild and do whatever they want regardless of the parameters of the sales process.
In relation to sales processes of this nature, I make it clear that I have some experience with serving on government sales task forces. I have spent considerable time involved in the sales process in the sale and privatisation of airports by the Commonwealth Government and also the Telstra sale. I make it very clear to the House that it is quite extraordinary to contend, as the Treasurer has, that anybody would suggest to any prospective bidder that they simply go wild, put their best bid on the table and hang the rules. The stark reality in these matters is that bidders will not put a bid on the table until there is certainty with the regulatory framework surrounding the sale. We have seen this particularly with the Government's proposed electricity privatisation. Without certainty on key regulatory aspects, such as emissions trading schemes, the price of carbon or the likely regulatory framework going forward, bidders will not involve themselves seriously in a sale process.
In this case the Parliament had passed legislation to facilitate the sale that specifically said that the unclaimed prizes pool would not be included in the sale but would go into consolidated revenue. Any bidder who enters a process where legislation sets out how they should bid and what the asset is that they are bidding for would not, in any commercial environment I have been familiar with, suddenly decide to contravene that legislation in putting in a non-conforming bid. We have it under direct authority from one bidding consortium that the tender rules made it clear what the regulatory framework for the sale was, and that regulatory framework, in part, was controlled by the legislation that had been passed by this House.
There can be no doubt that section 27A of the Public Lotteries Act made it clear that the unclaimed prize pool would go to consolidated revenue. It was not open to bidders to bid as part of the sales process. Nonetheless, the Treasurer saw fit to debunk that commercial reality and contend that the process was there to enable a bunch of cowboys to ride through as they saw fit. I note in particular that that extraordinary comment is at odds with the evidence put here today. I note in particular the documents the Treasurer saw fit to table in the House today, despite having five separate occasions to bring this information to the attention of the House prior to today, and that these documents in themselves are incomplete. I note the contribution from the Leader of the Opposition in this regard, his forensic examination of the documents and the email addresses appearing thereon, which are inconclusive as to the source and the timing of the documents being in the hands of the Government.
I note the challenge of the Leader of the Opposition for the Treasurer to come into this place or to send somebody on his behalf to clarify exactly the nature of this document and exactly when the Government was in possession of this information. It appears, on the face of it, that the Government was in possession from 23 April 010, yet the Government has seen fit not to table the documents until today. I note in particular that the first series of questions on the NSW Lotteries sale were put to the Treasurer on 21 April 2010, which probably accounts for this email trail being provided on 23 April 2010. However, subsequent to that time a further two opportunities were given to the Treasurer to submit these documents to the House to clarify exactly what has happened in relation to this process.
Sadly, the Treasurer has decided to play politics with this process, to undermine public confidence in the sales process of NSW Lotteries, and his failure to actually provide this documentation to the House shows the contempt with which he holds this place and his failure to understand the conventions of ministerial accountability and responsibility, so important to the facilitation of this place. I note in particular the contribution from Reverend the Hon. Fred Nile, who appeared to me to be almost an additional Government speaker on this matter. He focused particularly on the technical issues of whether the complaint letter of 17 March was indeed a concern, a complaint or a formal complaint. It really was a case of semantics overtaking reason. Technically the distinctions that were made are not of any import.
The reality is that whatever hurdles or smokescreens the Treasurer has put out on the technical use of language invoking the probity auditor to report, cleansing him of any wrongdoing, do not go to the heart of how the Treasurer has behaved in relation to the opportunities that the Opposition has given him to put on the record his response to the serious concerns raised by the Opposition. On no less than five occasions we have put to the Treasurer questions in question time to elucidate exactly what has happened with this transaction and every single time the Treasurer has failed to properly inform the House of what has happened in such an important transaction.
I note, in particular, that in those comments the Treasurer failed to submit the documents that were tabled today. I put to the House that it is possible to mislead by omission as well as commission. I think the Treasurer is guilty on all fronts in this case. Indeed, the Treasurer is duty-bound by the conventions of this place to provide all relevant answers to a question. This is explicitly stipulated under Standing Order 65 (5). The Treasurer could have provided the correspondence had he seen fit to table it in the House on any of those five previous occasions. This confirms the Treasurer's contempt for not only this side of the House, as he articulated in his contribution to the debate, but also the longstanding conventions and standards of ministerial accountability under the Westminster system.
Indeed, as I said earlier today, this censure motion goes to the heart of our Westminster system and to the dignity of this House. Members of this place and the wider public must have confidence that Ministers of the Crown will be honest in answering questions in this place, and when they are not, that they will be held accountable. This recognises the undeniable fact that ministerial responsibility and accountability is, indeed, at the core of the Westminster system of government.
Accordingly, I again call on members of the House to support this censure motion and send a clear message to the Treasurer that his conduct in misleading this House by, amongst other things, not answering questions put to him on five separate occasions over the past month not only is unacceptable from a Minister of the Crown but will not be tolerated by this House.
Question—That the motion be agreed to—put.
The House divided.
Reverend Dr Moyes
Mr Della Bosca
Question resolved in the negative.