The decision by the Minister for Transport, the Hon Rita Saffioti MLA, not to provide Parliament with the Taxi User Subsidy Scheme (TUSS) Review report was not reasonable and therefore not appropriate as parts of the report were not Cabinet-in-confidence and could have been provided.
On 15 February 2018, as part of the 2016-17 Estimates and Financial Operations Committee (Committee) Annual Report Hearings, the Hon Aaron Stonehouse MLC, asked the Minister representing the Minister for Transport for the following information (Supplementary Information A1):
A1. Can you please provide a copy of the Taxi Subsidy Scheme Review report?
On 15 March 2018, the Minister declined to provide the information, replying:
This document is subject to Cabinet deliberations and is therefore Cabinet-in-confidence.
On 12 April 2018, 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.
The decision by the Minister not to provide the TUSS Review report was not reasonable and therefore not appropriate.
The Minister properly sought advice from the Department of Transport (Department) before responding to the request. The Department recommended the report be provided to the Committee with a private status. The Minister did not follow this recommendation. Instead, the Minister declined to provide the report to the Committee stating it was subject to Cabinet deliberations and was therefore Cabinet-in-confidence.
In considering the Minister’s decision, we followed the approach laid out in previous Opinions on Ministerial Notifications dealing with Cabinet confidentiality, the core principle of which is to protect information that would reveal deliberations and decisions of Cabinet. We assessed the requested information against the following Cabinet confidentiality considerations:
Is part or all of the information publicly available?
A small amount of ‘overview’ information contained in the report was already publicly available on the Department’s website at the time the Minister declined to provide it to the Committee.
We also found the report had been circulated by the Department, with limited confidentiality provisions:
- with government transport agencies in 2 other states
- with a private financial services organisation to assist with implementation.
The Department circulated the report based on its understanding that the report would be made public. This understanding was consistent with initial tender documents for the review which stated the report, or parts of it, would likely be released publicly once completed. The report was completed in July 2017, but the Department only became aware the report was to be submitted to Cabinet 8 months later.
The Department did not consider, or treat the report as Cabinet-in-confidence in accordance with the ‘need to know’ principle outlined in the Department of the Premier and Cabinet’s Cabinet Handbook. This is also evident from the Department’s recommendation that the report be provided to the Committee, none of whom are Cabinet members.
Does the information contain material that would reveal the deliberations and decisions of Cabinet?
We viewed the submission that went to Cabinet and found that discrete information in the report could likely reveal the deliberations of Cabinet. The report was submitted to Cabinet on 17 July 2018, 4 months after the Minister declined to provide it.
Was the information created for the purpose of informing Cabinet or being discussed in Cabinet? Does it include policy options or recommendations prepared for submission to Cabinet?
The report was written with the understanding that parts would be made public. It was not created for the purpose of informing Cabinet or being discussed in Cabinet, nor does it include policy options or recommendations prepared for submission to Cabinet. We found the Department had already implemented some of the report’s recommendations prior to it being submitting to Cabinet. However, some parts of the report may be used to make future recommendations to Cabinet.
Did the Minister consider providing any sections of the information that would not reveal deliberations and decisions of Cabinet?
The Minister did not consider providing Parliament with those parts of the report that were already publicly available or would not reveal future deliberations or decisions of Cabinet.
Determining whether information is Cabinet-in-confidence is not straight forward. It is good practice for Ministers, their offices and agencies to document an assessment of the component parts of a requested document prior to Ministers declining to provide information to Parliament.
In our view, the report could have been provided to Parliament, at the time it was requested, with the discrete amount of Cabinet-in-confidence information redacted.
During the inquiry, the Minister advised that she had not ruled out future release of the report. On 29 November 2018, the Minister tabled a copy of the TUSS Review report in Parliament.