report

Opinion on Ministerial Notification

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Response from the Department of Justice

The Department of Justice notes the disclaimer of opinion issued by the Auditor General. That disclaimer was issued on the basis that the Auditor General was not given full access to the information (contained in an email) that had been sought in Parliament. As the Auditor General has referenced in Appendix 1, the Auditor General Act 2006 does not, by its terms, abrogate either legal professional privilege or public interest immunity.

The effect of this is that if the Attorney General provides the Auditor General with a document that is subject to either legal professional privilege or public interest immunity (which includes Cabinet confidentiality), he will, as a matter of law, be taken to have voluntarily disclosed the document to a third party. Significantly, this adversely impacts on the maintenance of claims to privilege and immunity in respect of that information in other contexts.

The Department notes the Auditor General’s position that the provision of these documents to her is consistent with the spirit of the legislation. The spirit of the legislation cannot be determined without regard to the express wording of the legislation and the legal reality that creates. The express words of the Auditor General Act 2006 do not provide for documents subject to legal professional privilege or public interest immunity to be capable of compulsion by the Auditor General. In the context of that statutory framework, there can be no argument that the spirit of the legislation requires something different.

Nonetheless, in the spirit of cooperation, in every instance, including this one, the Department, the Attorney General and his portfolio agencies endeavour to work with the Auditor General to find a solution which enables the Auditor General to have sufficient information to carry out her functions despite the absence of a statutory power on her part to compel the provision of documents subject to public interest immunity (or legal professional privilege).

In this instance, notwithstanding that the Attorney General, through the State Solicitor’s Office, expressed that same willingness to work towards a solution that properly balanced the role of the Auditor General with the importance of maintaining fundamental common law privileges, the Auditor General formed the view that only a complete copy of the document in question would suffice for her purposes.

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