Joe O'Toole (Independent)

I want this to be clear on the record. That member understood it to be the particular folder in question, although how he read through the cover is unknown. Whether he is right or wrong, everyone accepts that there is no record anywhere of the folder having arrived in the Minister's office.

What happened next is that on 10 March the Minister had one or two meetings with the Secretary General of the Department to sign up to the business plan. Mr. Travers asked the Secretary General whether he discussed the matter with the Minister on that occasion. He has no recollection of doing so. Mr. Travers asked him whether that occasion would not have been a reminder to him that the matter had not been sent to the Attorney General and he answered that it should have been. That is all clear in the report.

Some time later there was another meeting of the same group that had met in the Gresham Hotel, but this time the politicians were not present. That meeting was chaired by the Secretary General. The minutes of that meeting indicated that the previous meeting had sought the advice of the Attorney General and this was noted by the meeting. The only person at that meeting who knew the matter had not gone to the Attorney General was the Secretary General of the Department, who chose not to inform people that they were incorrect and that it had not happened.

Some months later, in October, the issue was raised again at a similar meeting of the same group. Again, there was only one person at that meeting who knew the matter had not gone to the Attorney General, namely, the Secretary General of the Department. He chaired the meeting but chose not to inform people that it had not gone to the Attorney General.

There is a major conflict with regard to what was said to the then Minister for Health and Children, Deputy Martin, and Senator Browne raised some important points with regard to whether Deputy Martin is right or wrong. The one clincher as far as I am concerned is whether the Secretary General told the Minister. We do not know. There is in the Tánaiste's words "a conflict of evidence". We know for a fact that when the Secretary General came to brief the new Minister, he did not find this issue important enough to brief her on it. From that I must conclude that all the evidence is on the side of the former Minister, Deputy Martin, for the previous year.

I hold no party political brief on these issues. However, I believe it is important to put matters on the record. If I have a criticism to make of Deputy Martin it is, as Senator Browne said, that this was a serious and important issue which he should have followed up. I do not agree that it would be reasonable to expect a Minister to have to examine documentation that was being sent by a Secretary General to an Attorney General. That is not normal practice. Neither would it be reasonable, in terms of turn around time through the Attorney General, that a Minister would expect to have advice back from the Attorney General in a short period. It does not happen that way and these are the facts.

I move on to the matters of political responsibility and the Accounting Officer. Under the 1924 Act, the Accounting Officer is the Secretary General. He clearly made errors. To be fair, he has explained how that could have happened. The former Minister, Deputy Martin, has explained how it could have happened and so has Mr. Travers. The Department is extraordinarily busy and has never had a more difficult time than during the past two years. Anyone can understand how a hard-working person, with an impeccable reputation until this matter, could have made a mistake.

It is important to record that it is grossly unfair for people to equate this with issues such as corruption, bribery and dishonesty. This man gained nothing, there was no profit and he has suffered badly from it. At most, he made a serious error of judgment or a serious omission. He did nothing dishonest or corrupt and made no personal gain. As Accounting Officer he had to take responsibility on an accounting matter. He has taken responsibility and is gone.

Under the Act, the Minister is the person with political responsibility. Therefore, he cannot say with one bound that he is free. What should a Minister do in this situation? Is it reasonable to expect that he should take responsibility for every neglect by omission or commission in his Department? For example, if somebody at a high level in the Department did some illegal, underhand or unfair dastardly act to line his or her pockets, would we expect the Minister to take responsibility? The best analogy I can give is the recent Act passed in this House regarding the requirement of directors to ensure that they take responsibility for signing off on compliance in their companies. The directors must say that they have put in place structures to ensure they have complied in every way with what is required and that to the best of their knowledge they have acted honourably and in compliance with all parts of the law.

In this situation, the structures were in place. The structure was a paper trail. Why did they not deal with it? The simple answer lies in the three different statements of the Secretary General. The paper trail stopped at his office. He admitted that he broke the system by taking the document from his office without recording it out and that wherever he brought it, he did not record it in. He has accepted responsibility for that. Can a Minister be held responsible for that? I do not know. It is the Opposition's job to make the Minister feel responsible but it is not my job as an Independent Senator.

I look at the matter from all sides and come to my conclusion which I want to put on the record of the House. This matter is a sorry mess. I am irritated by what I have heard here over the past week about what was legal or illegal. The Supreme Court judgment was very clear. The illegality did not refer to the retrospective element but to the private property element, something in the Constitution against which Senator Ryan and I have argued for many years. It was on the basis of the dastardly private property section in the Constitution, in as much as the person's pension was concerned to be his or her private property, that the Department was found to have acted unconstitutionally and without a legal framework.

In that regard, every Minister who sat in the Department and got this legal advice over the years must be answerable in as much as Deputy Martin. There is nothing in what I have read to say that he is more or less responsible than the first few Ministers who dealt with this matter. I do not know what people did in between.