This report deals with a decision by the Attorney General, the Hon John Quigley MLA, not to provide information to Parliament about an email from the Executive Director, Courts and Tribunal Services, regarding consultation on the Historical Homosexual Convictions Expungement Bill 2017 (Bill).
Section 82 of the Financial Management Act 2006 (FM Act) requires a Minister who decides that it is reasonable and appropriate not to provide certain information to Parliament, to give written notice of the decision to both Houses of Parliament and the Auditor General within 14 days of the decision.
Section 24 of the Auditor General Act 2006 (AG Act) requires the Auditor General to provide an opinion to Parliament as to whether the Minister’s decision was reasonable and appropriate.
The Audit Practice Statement on our website (www.audit.wa.gov.au) sets out the process we follow to arrive at our section 82 opinions, including:
· a review of entity documents
· a review of any advice provided to the relevant Minister by entities, the State Solicitor’s Office (SSO) or other legal advisers
· interviews with key entity persons including discussions about our draft findings and the Auditor General’s opinion.
Our procedures are designed to provide sufficient appropriate evidence to support an independent view to Parliament on the reasonableness and appropriateness of the Minister’s decision.
We have not performed an audit, however our procedures follow the key principles in the Australian Auditing and Assurance Standards.
I have been unable to obtain sufficient appropriate evidence on the Attorney General’s decision not to provide requested information to Parliament. Accordingly, I am unable to form an opinion on whether his decision was reasonable and therefore appropriate.
The Department of Justice (Department) and the SSO have both declined my requests to view a copy of the email requested in the parliamentary question and I therefore have insufficient information on which to base an opinion.
The email requested in the parliamentary question was crucial evidence to our inquiry. My inability to view it meant that I was unable to form an independent opinion about the claim of public interest immunity. Appendix 1 provides background on this issue.
The inability of an auditor to access the information they need to meet their obligation is a serious matter for the auditor and for those who rely on their opinion. In the event that an auditor is unable to obtain sufficient appropriate audit evidence, auditors have few options. One of these is to issue a Disclaimer of Opinion. This is the third occasion where my Office has been placed in this position for an opinion on a section 82 notice.
On 21 and 22 August 2018, during consideration of the Bill in the Legislative Council, the Minister representing the Attorney General, was asked questions about clause 5 that makes the CEO the decision-maker on applications for convictions to be expunged. The Minister explained that the heads of jurisdiction, Director of Public Prosecutions, Solicitor General, Western Australia Police Force, Commissioner for Victims of Crime, as well as a number of other stakeholders, were consulted and a departmental email confirmed support for the CEO being the decision-maker.
On 22 August 2018, the Hon Nick Goiran MLC, asked the Leader of the Government in the Legislative Council:
Can we have a copy of that email that was provided by the executive director of courts and tribunals sometime between 4 and 7 September 2017?
On 22 August 2018, the Leader of the Government in the Legislative Council declined to give this information, replying:
…I have indicated that the government will not be releasing the written documentation of the consultation.
On 18 October 2018, the Auditor General received notification from the Attorney General in accordance with section 82 of the FM Act, advising of his decision not to provide the requested information.
Chiefs of the Supreme, District and Magistrates Courts and the presidents of the Children’s Court and the State Administrative Tribunal. Western Australia, Hansard, Legislative Council, 22 August 2018, 1, (Sue Ellery, Leader of the House).