Opinion

The decision by the Attorney General, the Hon John Quigley MLA, not to provide Parliament with information about legal advice sought in relation to an ex gratia payment to the Dhu family was reasonable and therefore appropriate.

Background

In Parliament on 2 November 2017, Hon Michael Mischin MLC asked the Leader of the Government in the Legislative Council representing the Attorney General for the following information in Question without Notice 780:

(1)  Was a formal request for an ex gratia payment made on behalf of the Dhu family; and, if so, when and from whom?

(2)  Was legal advice sought and received regarding the appropriateness of such a payment and the amount?

(3)  If no to (2), why not?

(4)  If yes to (2), from whom and on what date was that advice sought and on what date was advice received?

(5)  When was the decision to award an ex gratia payment made and by whom, what was the basis for the decision to do so, and was it recorded and how?

(6)  Was the decision to award an ex gratia payment consistent with or contrary to ”the general conclusion” of the advice received?

On 2 November 2017, the Minister answered part (1). However, the Minister declined to give the information requested in parts (2) to (6), replying:

(2)   Yes, advice was sought and is subject to legal professional privilege, and accordingly I am unable to provide the requested information. I am cognisant of my obligations under section 82 of the Financial Management Act and will provide any notice required by that section to Parliament and to the Auditor General in accordance with the legislative requirements.

(3) – (4) See (2).

(5)   The Attorney General disclosed during the Legislative Assembly budget estimates hearing on 20 September 2017 that the government had paid an ex gratia payment to the Dhu family. The member would be aware that the making of an ex gratia payment is a matter for cabinet upon the recommendation of the Attorney General. I am unable to provide an answer to remaining aspects of this question as the information being sought is cabinet-in-confidence. Again, I will comply with any obligation I have to provide notification of this to the house and to the Auditor General in accordance with section 82 of the Financial Management Act 2006.

(6)   See (2).

On 23 November 2017, the Attorney General notified the Auditor General of his decision not to provide the requested information in accordance with section 82 of the FM Act.

In considering the Attorney General’s decision, we followed the approaches laid out in our previous Opinions on Ministerial Notifications dealing with legal professional privilege[1] and Cabinet-in-confidence[2].

Key findings

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

The State Solicitor’s Office (SSO) told us that it provided the Attorney General with assistance in responding to the question.

Legal professional privilege

Parts (2), (3), (4) and (6) of the question asked for information about legal advice the Government received in considering an ex gratia payment to the Dhu family. The Attorney General informed Parliament that advice was received, but that he was unable to provide the information as it was subject to legal professional privilege.

Our request to see the legal advice was declined, as in SSO’s view releasing the information to the Auditor General could waive legal professional privilege.

On this occasion, we received sufficiently convincing other evidence that SSO provided advice to the Attorney General regarding the request for an ex gratia payment. We are also satisfied that this advice met the definition of legal advice, and that the requested information would reasonably be protected by legal professional privilege.

Cabinet-in-confidence

Part (5) of the question asked for information about how the decision was made to award an ex gratia payment to the Dhu family. The Attorney General informed Parliament that he was unable to provide this information, as decisions to make an ex gratia payment are a matter for Cabinet and are subject to Cabinet-in-confidence.

We reviewed Cabinet documents regarding the payment and found it was the subject of a submission considered by Cabinet. The information requested in part (5) was not generally known or ascertainable from publicly available sources.

On this basis, we are satisfied that the requested information is subject to Cabinet-in-confidence, as providing it would reveal the deliberations and decisions of Cabinet.

[1] Office of the Auditor General. 2016 Report 10: Opinions on Ministerial notifications

[2] Office of the Auditor General 2016 Report 18: Opinions on Ministerial notifications