Opinion

The decision by the Minister for Transport, the Hon Rita Saffioti MLA, not to provide Parliament with advice from the SSO about changes to the Harvest Mass Management Scheme (HMMS) was reasonable and therefore appropriate.

Background

In Parliament on 9 May 2018, the Hon Colin De Grussa MLC asked the Minister representing the Minister for Transport for the following information in Question without Notice 326:

I refer to the decision by Main Roads WA to change the harvest mass management scheme pilot requirements.

(1)     Will the Minister table advice from the State Solicitor’s Office outlining the need to institute changes to the HMMS to reduce risk to the state?

(2)     Does the change include grain movements outside the harvest period?

(3)     If yes to (2), from what date will the changes to the HMMS apply and how often will it be reviewed?

(4)     What consultation with industry was undertaken by Main Roads WA or the minister’s office prior to the making of this decision?

(5)     Will the minister consider a compromise to the changes in order to satisfy advice from the State Solicitor’s Office?

On 9 May 2018, the Minister representing the Minister for Transport provided the information in (2) to (5) and declined to provide the information requested in (1), replying:

I thank the honourable member for some notice of the question.

(1)     The advice is subject to legal professional privilege

(2)     No

(3)     Not applicable

(4)     A final position on the harvest mass management scheme access requirements has not yet been reached. The proposal has recently been provided to some sectors of the industry. Consultation is ongoing, with a view to introducing some changes to the HMMS prior to the forthcoming harvest.

(5)     Any changes to the HMMS access requirements will need to fully consider the advice from the State Solicitor’s Office, particularly with regard to road safety.

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

The Minister properly sought advice from Main Roads Western Australia (Main Roads) before responding to the request. Main Roads recommended the Minister decline to provide the information to Parliament because the advice was subject to legal professional privilege.

In considering the Minister’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’.

Key findings

The decision by the Minister not to provide the requested information was reasonable and therefore appropriate.

We asked the Attorney General for permission to examine the SSO advice so we could confirm its existence and privileged status. The Attorney General advised it is the State’s long held view that the Auditor General does not currently have the authority to view legal advice under the AG Act. In his view, releasing legal advice to the Auditor General could waive the State’s claim of legal professional privilege.

The SSO provided us with confirmations and heavily redacted information, reiterating the claim of legal professional privilege. Based on this evidence we were satisfied that the legal advice requested in Parliament existed and is subject to legal professional privilege.

The Auditor General has previously expressed a view that the AG Act should be amended to allow this Office to examine legal advice as a primary source of evidence to save time, effort and resources.

 

[1] Office of the Auditor General. 2016 Report 10: Opinions on Ministerial Notifications, p.19