Opinion on Ministerial Notification


Appendix 1: Access to information and public interest immunity

It is a professional requirement for auditors to have access to information they consider necessary to perform their duties. In the absence of such access, auditors have few options. One of these is to issue a Disclaimer of Opinion.

I was compelled to issue a Disclaimer of Opinion for the notice mentioned in this report because the Department, acting on the SSO’s advice, and the SSO declined to provide me with access to the email requested in Parliament. In the SSO’s view, releasing the email to us or allowing us to view it would be inconsistent with the document’s public interest immunity status.

During this inquiry, the SSO offered to provide some evidence to confirm the existence of the requested email and its subject matter. This is consistent with our previous opinions concerning information subject to legal professional privilege, where we have relied on sufficient and appropriate evidence from the SSO to confirm the existence and subject matter of those documents.  

However, we are unable to rely on the SSO’s confirmation that the email exists nor some evidence of its contents to form an opinion in this current matter. Access to the email in question is required to independently assess the claim of public interest immunity and form an opinion.    

Previous SSO advice provided to this Office is that section 36(2) of the AG Act provides the Auditor General with powers to obtain documents derived from written law. The SSO’s view is that public interest immunity, like legal professional privilege, are common law doctrines and do not fall within the definition of what constitutes a written law.

My Office must be able to examine documents subject to public interest immunity and legal professional privilege, while at the same time protecting the status of the documents. I consider that my access to such documents is entirely consistent with the spirit and intent of the AG Act.

However, advice the SSO has previously provided to me is that Parliament’s intent as evidenced by the Explanatory Memorandum that accompanied the Auditor General Bill was not achieved by the AG Act and hence the Act would need amending to give that authority.

I continue to seek every opportunity to communicate the importance of amending the AG Act in this regard. Following the 2016 review of the operation and effectiveness of the AG Act by the Joint Standing Committee on Audit, I am confident this matter has support across Government and the Parliament to finally progress to a real and sensible resolution.

Page last updated: June 20, 2019

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