This report deals with 3 decisions by 3 Ministers not to provide information to Parliament:
- One decision by the Minister for Education, the Hon Peter Collier MLC, not to provide to Parliament a copy of the Department of Education’s Strategic Asset Plan.
- One decision by the then Minister for Health, the Hon Kim Hames MLA, not to provide to the Estimates and Financial Operations Committee a copy of the Department of Health’s Strategic Asset Plan.
- One decision by the Minister for Police, the Hon Liza Harvey MLA, not to provide to the Estimates and Financial Operations Committee information on the maintenance backlog for police facilities in 2014-15.
Section 82 of the Financial Management Act 2006 (the 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 (AG Act) requires the Auditor General to provide an opinion to Parliament as to whether the Minister’s decision was reasonable and appropriate.
Section 82 of the FM Act and section 24 of the AG Act follow the 1992 Royal Commission into the Commercial Activities of Government and the Commission on Government . However, the scope of the legislation goes beyond commercial information, and encompasses the withholding of any information relating to the conduct or operation of an agency.
This is the first occasion on which I have been required to provide an opinion in relation to information considered Cabinet-in-confidence (CIC). Cabinet confidentiality is an essential part of our system of government. So too is the requirement for Parliament to receive the information it needs to hold the State Government to account.
There is no science or statute to assist in determining what constitutes CIC. In arriving at my opinions, I received a wide range of sometimes conflicting views concerning CIC and the processes agencies should follow to give sound advice to their Minister.
My role is to form an independent view as to whether in the particular circumstances, it is reasonable and appropriate for the information to be withheld from Parliament. In reaching my opinion, I assess the soundness of advice provided by an agency to their Minister and the reasons given by the Minister for their decision. However, my opinion is not an assessment of the decision-making process.
What did we do?
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 agency documents
- a review of any advice provided to the relevant Minister by agencies, the State Solicitor’s Office or other legal advisers
- interviews with key agency staff including discussions 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 a Minister’s decision. In forming the opinions, we give due regard to relevant laws and conventions as well as the importance of transparency and Parliament’s need for information so that it can hold government to account.
We have not performed an audit; however, our procedures follow the key principles in the Australian Auditing and Assurance Standards.
In arriving at the 3 opinions, we also spoke with the Department of the Premier and Cabinet (DPC) and the Department of Treasury (Treasury). The DPC is the Cabinet Secretariat and provides guidance to Western Australian agencies on Cabinet processes. Treasury is responsible for the implementation of the Strategic Asset Management Framework (SAMF), which includes strategic asset plans (SAPs). We also obtained legal advice from the Western Australian State Solicitor’s Office (SSO) and the Australian Government Solicitor.
We have made a recommendation to DPC on providing greater guidance on when CIC would apply. We have also made recommendations to Treasury on providing agencies with greater guidance on the SAP information. Please see page 16.
The decision by all 3 Ministers was that the information sought was CIC and they therefore could not provide it to Parliament. This is the first time we have had to consider whether Cabinet confidentiality applied to information that a Minister had decided not to provide to Parliament. We therefore sought to establish an approach that we could use to form a view about whether the decisions were reasonable and appropriate.
In doing so, we reviewed a range of Western Australian and national sources including the Western Australian and Commonwealth Cabinet Handbooks, papers on Cabinet confidentiality from the national Parliamentary Library and the New South Wales Department of Premier and Cabinet. We also looked at the Western Australian and Commonwealth Freedom of Information Acts. While there is considerable cross-over, we could not find an agreed list of documents to which Cabinet confidentiality would apply.
As a result, we based our examinations upon a consensus view of prominent sources that the core principle of CIC is to protect information that would reveal deliberations and decisions of Cabinet. We also considered the main purpose for the preparation of the information requested by the Parliament, and whether it was provided to Cabinet.
In conducting our examinations, we considered the following:
- 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?
- Does the information contain material that would reveal the deliberations and decisions of Cabinet?
- Is part or all of the information publicly available, or readily available within the agency? Information already in the public domain is unlikely to be confidential unless it reveals Cabinet deliberations. If parts or all of the information held within an agency are easily accessible by its staff (for example, stored in an unsecured location) then it also may not be reasonable to consider it confidential.
- Did the Minister consider providing any sections of the information that would not reveal deliberations and decisions of Cabinet? In our view, it is important to consider whether Cabinet confidentiality applies to an entire document or to specific parts. In many cases, redacting parts of documents that would reveal the deliberations and discussions of Cabinet will be impractical. However, some documents are compendiums of a range of information and it may be possible for a document to contain parts that by their nature may reveal Cabinet deliberations and discussions, and significant and meaningful components that may not.
Further detail on how we derived our considerations is available in Appendix 1.
In applying these considerations, we kept in mind the advice of the Western Australian Cabinet Handbook which says that documents that are being prepared for Cabinet, but have not yet gone to Cabinet, should also be handled with care.
Strategic asset plans
Two notifications arose from a decision not to provide Parliament with a SAP. The other notification arose from a refusal to provide the dollar value of maintenance backlog for Western Australian Police facilities that was claimed to be in a SAP. The SAP is part of the SAMF which all state government agencies, and government trading enterprises, are required to adhere to. As outlined in guidance published by Treasury, the purpose of the SAMF is to improve asset investment planning and management across the public sector.
A SAP is an essential business planning document and is updated each year even if an agency has few assets or no need to invest. In creating a SAP, an agency takes stock of its assets; demand for, and its ability to provide services; and sets out how it will deliver services in the next 10 years. An agency’s SAP identifies and prioritises investment needs and also informs the Minister, Treasury and Cabinet of budget demands and risks from which priority applications for budgetary funding are developed.
In creating a SAP an agency draws on a range of sources and information. Some of this may be public such as demographic information, and some may be internal to an agency such as reports on performance. The SAP includes an agency’s analysis of this information and its conclusions about its asset investment program, and its ability to provide services.
In consultation with Treasury, an agency’s SAP is updated each year to reflect new Cabinet decisions. These decisions may affect an agency’s priorities.
An agency is required to lodge its SAP with Treasury prior to making budget submissions to its Minister. When considering an agency’s budget submission, Treasury analysts draw upon the SAP for the business justification. The Treasury analysis and resulting advice accompanies the agency’s budget submission to Cabinet. DPC advised that none of the 3 agencies SAPs were provided to Cabinet, though this by itself does not eliminate CIC.
Treasury advised all 3 agencies that the SAP is classified as CIC. Agencies accepted Treasury’s advice in advising their Ministers. This reflected prevailing arrangements for the handling of budget documents and is understandable.
However, the SAP in its current form serves a dual purpose as an agency business planning document and as a source of content into the state’s budget process. It may also contain certain publicly available information. Neither Treasury nor the agencies considered whether these could be reasons for recommending Parliament be provided with those parts of the SAP that would not reveal Cabinet deliberations. We recognise that in some circumstances, disclosing that publicly available information was included in source material for Cabinet could reveal Cabinet deliberations.
The dual role of the SAP has potential to cause confusion for agencies if called on to determine material that is CIC. Treasury guidance could reduce potential confusion by distinguishing elements of a SAP that may reveal Cabinet deliberations from those that can be released for scrutiny by Parliament.
 Appointed November 1994 by the Commission on Government Act 1994.
 http://www.treasury.wa.gov.au/Strategic-Asset-Management-Framework.aspx accessed on 15 June 2016.