Opinion on Ministerial Notification


Appendix 1: Auditor General’s view on legal professional privilege and access to information

The matter of whether providing copies of legal advice to me, under statutory provisions in order to form an independent opinion on behalf of the Parliament, would waive legal professional privilege has been the subject of ongoing consideration for successive governments, legal advisers and the Parliament over recent years.[1]

During this particular section 82 inquiry, the Attorney General rightly considered the potential exposure to the State arising from providing me with the relevant legal opinion. In doing so, he also had to consider the desire of his Office to respect concerns of the SSO against my requirement to form an independent opinion on behalf of the Parliament under the Auditor General Act 2006 (AG Act).

The time, effort and resources involved for my Office, the Attorney General’s Office and for the SSO to conclude this inquiry has again highlighted the need for amendment to the AG Act. My Office must be able to examine legal advice as a source of primary evidence in the discharge of my duties, while at the same time protecting the State’s legal professional privilege.

Government has supported an amendment to the AG Act, following recommendations in the Parliamentary Joint Audit Committee’s 2016 review of the effectiveness of the AG Act, and other reviews. During the course of this section 82 inquiry, the Attorney General re-affirmed this support.

The Department of Treasury is currently reviewing legislation key to the operations of my Office, including the AG Act and the FM Act. My Office is working with Treasury as appropriate to see information restrictions addressed[2]. I am confident this matter has the support across Government and the Parliament to finally progress to a real and sensible resolution.

[1] See for example: Joint Standing Committee on Audit. 2016 Review of the operation and effectiveness of the Auditor General Act 2006; Office of the Auditor General. 2015 Opinions on Ministerial Notifications, Appendix 2; Standing Committee on Estimates and Financial Operations. 2016 Report 62: Provision of Information to the Parliament; and McGowan State Government. February 2018 McGowan Government Response to the Special Inquiry.

[2] See Office of the Auditor General. 2018 Annual Report 2017-18, p16.

Page last updated: October 31, 2018

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