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Opinion on Ministerial Notification

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Opinion, background, key findings and entity response

Opinion

The decision by the Minister for Ports, the Hon Alannah MacTiernan MLC, not to provide Parliament a copy of the Agreement was reasonable and therefore appropriate.

Background

On 22 May 2019, the Hon Martin Aldridge MLC submitted a question out-of-session about the Pilbara Ports Authority (PPA) to the Legislative Council’s Estimates and Financial Operations Committee (the Committee) for its 2019-20 Budget Estimates Hearings:

I refer to the Harriet Point Agreement and I ask:
(a) Will the Minister please provide a copy of the agreement to the committee;
(b) If no to (a) will the Minister provide a copy of the agreement in confidence to the committee;
(c) What is the financial cost/benefit to the Authority in 2019/20 directly related to the agreement;
(d) Has the agreement been amended since its execution of August 2008;
(e) If yes to (4) on what dates were the amendments made;
(f) Who has access to the agreement;
(g) Who are party to the agreement; and
(h) In summary what does the agreement provide for?

On 10 June 2019, the Minister submitted a written response to parts (c) to (h) but declined to provide the information requested in parts (a) and (b), replying:

(a) No.
(b) No.

The Minister’s full response is included in Appendix 1.

On 26 June 2019, the Auditor General received the Minister’s notification of the decision not to provide the requested information in accordance with section 82 of the FM Act.

Key findings

The decision by the Minister not to provide a copy of the Agreement was reasonable and therefore appropriate.

The Minister properly sought advice from the Department of Transport (the Department) before responding to the request. The Department in turn sought advice from the PPA, the entity responsible for managing the Agreement, before advising the Minister.

The Department recommended the Minister not provide a copy of the Agreement. The Minister followed the Department’s advice.

The Minister’s section 82 notice advised that the information could not be provided to Parliament because it is commercially sensitive and confidential, and disclosure could result in detriment to the State in the form of liability from a breach of contractual obligations, as well as reputational damage.

We have previously assessed the confidentiality of the Agreement[1] and found that its disclosure would breach the explicit confidentiality requirements contained within it. In our view, the commercial interests of the State are likely best served by continuing to keep the Agreement confidential.

We assessed if a copy of the Agreement could have been provided to the Committee with a request that it be kept confidential, and found that the Legislative Council Standing Orders allow the Committee or the Legislative Council to order the release of private evidence.[2] Therefore, providing the Agreement to the Committee, even with such a request, would relinquish responsibility for its confidentiality to the Committee and the Legislative Council when protecting confidentiality is the Minister’s responsibility.[3]

Response from the Department of Transport

The Department has reviewed and supports the summary of findings. The Department has no further input to the final report.

 

[1] Office of the Auditor General. Opinions on Ministerial Notifications, Report No 14 (2019) pp. 11-12.

[2] Legislative Council of Western Australia, Standing Orders, clause 175(4), January 2019.

[3] Office of the Auditor General. Opinions on Ministerial Notifications, Report No 17 (2014), p. 4.

 

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