The decision by the Minister for Water, the Hon Dave Kelly MLA, not to provide Parliament with unredacted copies of Annual Reports from Liveringa Station (Liveringa) was reasonable and therefore appropriate.
In Parliament on 12 June 2018, the Hon Robin Chapple MLC asked the Minister for Regional Development, representing the Minister for Water, for details of proposed water use by Liveringa, as follows:
Legislative Council Question on Notice 1391
I refer to the irrigation centre pivots at Liveringa Station owned by Gina Rinehart, and I ask:
(a) when were the centre pivots installed;
(b) how many are there;
(c) what size in hectares are they;
(d) are they built on a floodplain;
(e) how much water has been allocated to their operation;
(f) how much of the allocation has been used in each year of operation;
(g) what months of each year was water being pumped;
(h) if the allocation is not fully used each year, does the department have a policy of reducing the allocation;
(i) if yes to (h), why has this not been done at Liveringa;
(j) does the water licence state that the licensee must install an approved meter to each draw-point through which water is taken under this licence by 31 December 2017;
(k) if yes to (j), has a meter been installed;
(l) if no to (k), why not and what action will the department take to enforce the condition;
(m) will the Minister table the Annual Reports for the past three years; and
(n) if no to (m), why not?
On 21 August 2018, the Minister provided an answer to all parts of the question but in answering part (m), provided redacted information. The Minister replied:
(m) Yes. Commercially sensitive information has been redacted.
On 23 August 2018, the Auditor General received the Minister’s notification of the decision to provide redacted information in response to part (m), in accordance with section 82 of the FM Act.
The decision by the Minister to provide redacted information in response to part (m) was reasonable and therefore appropriate.
The Minister properly sought advice from the Department of Water and Environmental Regulation (Department) before responding to the request. The Department recommended the Minister provide the Annual Reports with confidential information redacted. The Minister followed the Department’s advice and provided 3 redacted Annual Reports, a list of which is included at Appendix 2.
We assessed the redacted information using our criteria for information that is confidential to a third party. Specifically:
Criterion 1 – the information should be sufficiently secret
This criterion was met. We found the majority of the information redacted from the Annual Reports was not generally known or ascertainable using publicly available sources at the time the Minister declined to provide it. This included details of Liveringa’s business and operational activities, such as crop choices, application rates of irrigation water, fertilisers and pesticides.
Criterion 2 – the confidential information must be specifically identified
This criterion was met. Three Annual Reports have been provided to the Department by the owners of Liveringa during the past 3 years. Before advising the Minister, the Department consulted with the owners to identify confidential information within the reports. This information related to Liveringa’s commercial and technical activities. The Department assessed and documented the confidential nature of the information before advising the Minister on which parts to redact.
Criterion 3 – disclosure would cause unreasonable detriment to the owner of the information or another party. Disclosure would not be in the public interest
This criterion was met. In assessing this, we weighed the public interest in releasing the information against the possible harm to the interests of government or another party.
We agreed with the Department’s view that releasing the redacted information could adversely affect the commercial interests of Liveringa. This included information about Liveringa’s commercial techniques and approaches that may be of interest to competitors.
Criterion 4 – the information was provided on the understanding that it would remain confidential
This criterion was met. The Annual Reports were provided to the Department to meet the conditions of Liveringa’s water licence. The information was provided by Liveringa with an expectation of confidentiality. While the licence agreement does not contain an express understanding of confidentiality, the Department’s practice is to treat information received as part of licence agreements as confidential.
The Department consulted with Liveringa who reiterated their expectation that the information be treated confidentially and objected to its release on the grounds that it contained commercially sensitive information.
The Department has advised us that the guidance for water licence applications has been updated to clarify when information may be released.