Ministerial decision not to provide information to Parliament
This report deals with a decision by the Minister for Regional Development and Agriculture and Food, the Hon Alannah MacTiernan MLC, not to provide Parliament with a full version of the Department of Primary Industries and Regional Development’s Capability Review: Phase 1 report.
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 requires the Auditor General to provide an opinion to Parliament as to whether the Minister’s decision was reasonable and appropriate.
What we did
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 State government entity documents
- a review of any advice provided to the relevant Minister by entities, the State Solicitor’s Office or other legal advisers
- interviews with key entity persons and discussions with Ministerial staff 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.
The decision by the Minister for Regional Development and Agriculture and Food, the Hon Alannah MacTiernan MLC not to provide Parliament with a full version of the Department of Primary Industries and Regional Development’s Capability Review: Phase 1 final report was reasonable and therefore appropriate.
In Parliament on 15 August 2019, Hon Martin Aldridge MLC asked the Minister for Regional Development and Agriculture and Food, in Legislative Council Question on Notice 2390 to table the Department of Primary Industries and Regional Development’s Capability Review: Phase 1 final report. The question was:
I refer to the ‘Report on Consultants Engaged by Government’ report for the six months ended 31 December 2018 and I ask:
(a) Please table the ‘Provision of DPIRD capability review, develop capabilty review and evaluation plan, strategic logic and public value assessment, functional analysis and final report’ commissioned by the Department of Primary Industries and Regional Development and undertaken by the Nous Group?
On 24 September 2019 the Minister responded as follows:
The capability review formed part of a submission to the Expenditure Review Committee and is considered Cabinet-in-confidence. The document remains under active consideration by the Department as it continues to deliver organisational change.
On 8 April 2020, the Auditor General received the Minister’s notification in accordance with section 82 of the FM Act of the decision to provide a redacted version of the requested report.
The decision by the Minister not to provide a full version of the report was reasonable and therefore appropriate.
The Department of Primary Industries and Regional Development (DPIRD) advised us, and the Minister’s office confirmed, that the Minister properly sought advice from DPIRD before responding to the request. However, DPIRD declined to provide us with the advice on the basis it was covered by legal professional privilege. In developing the advice, the Department sought legal guidance from both its in-house legal team and the State Solicitor’s Office.
Although we were not provided with DPIRD’s advice, we obtained and reviewed the original, complete report.
In assessing the redacted information, we followed the approach set out in previous opinions on Ministerial notifications dealing with Cabinet confidentiality.1
Our analysis of the redacted information found the primary purpose of the information was to inform Cabinet. As part of the 2018-19 Budget, Government approved DPIRD to undertake the capability review to report to the Expenditure Review Committee. The report formed part of a Cabinet submission.
While some of the information in the report may be publicly available, the context in which it was provided informed, and could reveal, the deliberations and decisions of Cabinet and therefore should remain confidential.
However, we identified a few instances where information was not consistently redacted across all sections of the report, and a small portion of redacted information was likely redacted in error and could have been made public. When redacting information public entities should take care to ensure the necessity of any and all redactions. The default position should be one of disclosure.
This is the first notification we have received where a Minister has tabled a redacted document in relation to Cabinet-in-confidence information. We commend the Minister for providing information to Parliament while upholding Cabinet confidentiality.
Response from Department of Primary Industries and Regional Development
The Department agrees with the Auditor General’s opinion that the Minister’s decision was reasonable and appropriate in all of the circumstances. The Department are always cognisant of the importance of providing information to Parliament where it is appropriate to do so, and this instance was no exception. Although the Office of Auditor General has indicated support for the approach taken in the present case, it must be reiterated that the information that was provided to Parliament in this instance was provided because on the specific circumstances of the matter it was possible to do so without compromising cabinet confidentiality.
1 Office of the Auditor General for Western Australia. Opinions on Ministerial Notifications, Report No 18 (2016), p. 5 & p.19