Opinion on Ministerial Notification



In Parliament on 28 June 2018, the Hon Michael Mischin MLC asked the Leader of the Government in the Legislative Council representing the Attorney General, for the following information in Question without Notice 534:

(1)  Did the advice the Attorney General received from the State Solicitor’s Office support or not support the making of a payment?

(2)  Did the advice he receive identify failings for which the state was responsible, with reference to the Court of Appeal judgement in Gibson v State of Western Australia [2017] WASCA 141; and, if so, precisely what were those failings?

(3)  To the extent that the miscarriage of justice resulted from Mr Gibson’s blameless plea of guilty on the basis of legal advice, is the state proposing to recover any of the $1.5 million from his legal representatives; and if not, why not?

(4)  Why will the government not pay compensation to other accused who are acquitted on appeal, having been convicted after pleas of not guilty, and so suffered a miscarriage of justice for which they are blameless?

On 28 June 2018 the Hon Sue Ellery, on behalf of the Attorney General, answered part (4). However, the Attorney General declined to give the information in parts (1) to (3), replying:

(1)–(3) Answering this question would require disclosure of matter that is subject to legal professional privilege and, accordingly, I am unable to provide the requested information. I am cognisant of my obligations under section 82 of the Financial Management Act and will provide any notice required by that section to Parliament and to the Auditor General in accordance with the legislative requirements.

On 17 July 2018, the Attorney General notified the Auditor General of his decision not to provide the requested information in accordance with section 82 of the FM Act.

In considering the Attorney General’s decision, we followed the approaches laid out in our previous Opinions on Ministerial Notifications dealing with legal professional privilege[1].

For legal professional privilege to apply, communications between the client and lawyer ‘…must be for the “dominant purpose of legal advice or in relation to actual or anticipated litigation …’. If the dominant purpose test is met, then legal professional privilege extends to:

  • notes, memoranda or other documents made by staff of the client, if those documents relate to information sought by the client’s legal advisor to enable legal advice to be provided
  • a record or summary of legal advice even if prepared by a non-lawyer but not to the client’s opinions on or stemming from the legal advice
  • drafts, notes and other material brought into existence by the client for the purpose of communication to the lawyer whether or not they are actually communicated to the lawyer
  • the lawyer’s revisions of the client’s draft correspondence.

[1] Office of the Auditor General. 2016 Report 10: Opinions on Ministerial Notifications, p.6.


Page last updated: October 31, 2018

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