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Opinions on Ministerial Notifications

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Ministerial decision not to provide a copy of the Harriet Point Agreement and information about its primary effect to Parliament

Opinion

The decision by the Minister for Transport not to provide Parliament with a copy of the Harriet Point Agreement and information about its primary effect was reasonable and therefore appropriate. However, Pilbara Ports Authority did not document an assessment of the primary effect of the Agreement or how non-disclosure of the information was in the public interest, or advise the Minister of the option to provide Parliament with the limited information that could be disclosed.

Background

In Parliament on 13 March 2018, the Hon Martin Aldridge MLC asked the Minister for Transport, for the following information in Question on Notice 894:

I refer to the Harriet Point Agreement, and I ask:

(a)  Who are the parties to the agreement;

(b)  When was the agreement executed;

(c)   What is the primary effect of the agreement; and

(d)  will the Minister please provide a copy of the agreement?

On 10 April 2018, the Leader of Government in the Legislative Council, on behalf of the Minister, provided the information requested in parts (a) and (b) and declined to provide the information requested in parts (c) and (d), replying:

(a)  Parties to the agreement are BHP and the Port of Port Hedland (now the Pilbara Ports Authority)

(b)  The agreement was signed in August 2008

(c)-(d) As stated by the then Treasurer in the Legislative Assembly on 24 February 2016, “the Harriet Point agreement between the port of Port Hedland and BHP is confidential”

On 12 June 2018, the Auditor General received notification of the Minister’s decision not to provide the requested information in accordance with section 82 of the FM Act.

Key findings

The decision by the Minister for Transport not to provide:

  • information on the primary effect of the Harriet Point Agreement (Agreement) was reasonable and therefore appropriate
  • a copy of the Agreement was reasonable and therefore appropriate.

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

The Department recommended the Minister not provide the primary effect and a copy of the Agreement because the Agreement is confidential. The Minister followed the Department’s advice.

The Minister’s section 82 notice further advised that the information could not be provided to Parliament because it was commercially sensitive, 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.

Before providing advice to the Minister, the Department and Pilbara Ports Authority did not document an assessment of the primary effect of the Agreement or how non-disclosure of the information was in the public interest. They also did not consider providing Parliament with the limited information that could be disclosed. It is good practice to assess and document the confidentiality of the information prior to declining to provide it.

We assessed the information using our key criteria for commercial confidentiality as outlined in our Audit Practice Statement.[1] Specifically:

  • Criterion 1 – the information should be sufficiently secret.
  • Criterion 2 – the confidential information must be specifically identified.
  • Criterion 3 – disclosure would cause unreasonable detriment to the owner of the information. Disclosure would not be in the public interest.
  • Criterion 4 – the information was provided on the understanding that it would remain confidential.

The primary effect of the Harriet Point Agreement

We found the decision by the Minister for Transport not to provide Parliament with information about the primary effect of the Agreement was reasonable and therefore appropriate.

Criterion 1 was met. At the time of the Minister’s decision, information on the primary effect of the Agreement was not generally known or ascertainable from publicly confirmed sources.

Criteria 2 and 4 were met. Most of the information in the Agreement is specifically identified as confidential. The primary effect of the Agreement is multi-faceted and cannot be fully and comprehensively disclosed to Parliament due to the confidentiality restrictions in the Agreement.

We found that part of the primary effect, the existence of the process referred to in clause 7.6 of the Agreement, can be disclosed without breaching confidentiality. We consider that disclosing the existence of this process would not provide the entire primary effect of the Agreement.

Criterion 3 was met. We assessed the potential benefits and detriments of disclosing the primary effect and found that the commercial interests of the State were likely best served by keeping the primary effect confidential as disclosure would breach the explicit confidentiality requirements of the Agreement.

A copy of the Harriet Point Agreement

We found the decision by the Minister for Transport not to provide Parliament with a copy of the Agreement was reasonable and therefore appropriate.

Criterion 1 was met. At the time of the Minister’s decision, information in the Agreement was not generally known or ascertainable from publicly confirmed sources. We found little information about the Agreement has been made public in the 10 years since it was signed, other than the existence of the Agreement. In answering other parts of the Parliamentary question, the Minister advised that the Agreement was signed in August 2008 and the parties to the Agreement were BHP and the Port of Port Hedland (now the Pilbara Ports Authority).

Criteria 2 and 4 were met. We found that most of the information in the Agreement is specifically identified as confidential and that an obligation of confidence exists. The Agreement has been entered into on the written understanding it would remain confidential. We assessed if the Agreement could have been provided with confidential parts redacted and found that the Agreement could not meaningfully be provided with the confidential information redacted.

Criterion 3 was met. We assessed the potential benefits and detriments of disclosing the Agreement and found that the commercial interests of the State were likely best served by keeping the Agreement confidential as disclosure would breach the explicit confidentiality requirements of the Agreement.

Transparency and accountability must be fundamental considerations in agreements between the State and other parties. Section 81 of the FM Act does not allow government to enter into contractual or other arrangements in such a way as to impose confidentiality from Parliament.[2] The Freedom of Information Act 1992 supports transparency and accountability by providing a general right of access to State and local government documents. Access to information is in the public interest because it allows the Parliament and the public to understand and debate potential financial and non-financial benefits, detriments and other impacts to the State of government decisions.

Where confidentiality is assessed as being in the State’s best interest, it is good practice for governments to document the reasons and to establish a maximum timeframe for preserving confidentiality. Agreements should be periodically reviewed and include assessment of whether confidentiality remains in the State’s best interest, or if disclosure is more appropriate.

Response from the Pilbara Ports Authority

Pilbara Ports Authority (PPA) agrees with the Auditor General’s key findings that the decision by the Minister for Transport not to provide to Parliament:

  •  Information on the primary effect of the Harriet Point Agreement (Agreement) was reasonable and therefore appropriate; and
  • A copy of the Agreement was reasonable and therefore appropriate.

PPA will continue to review its procedures relating to Parliamentary requests for information, to ensure that the Parliament is kept appropriately informed in all matters regarding the PPA.

 

[1] Office of the Auditor General. 2018 Audit Practice Statement, pp.17-19

[2] See also Report 62 – Standing Committee on Estimates and Financial Operations – Provision of Information to the Parliament – May 2016, pp.55-57

 

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