❓ Opposition questions the Energy Minister about potential legal risks associated with changes to the solar feed-in tariff scheme, referencing a leaked briefing note and seeking clarification on advice received from the State Solicitor's Office. Minister denies wrongdoing, states that the advice was misinterpreted by the Public Utilities Office.
AnsweredQoN 407Legislative Assembly
QuestionView source ↗
SOLAR FEED-IN TARIFF SCHEME
407. Mr M. McGOWAN to the Minister for Energy:
I refer to the leaked briefing note that was given to the
minister on 19 July that shows he was advised there would be legal risks
regarding the budget changes to the existing solar feed-in tariff scheme.
(1) Why did
the minister make the decision to rip up contracts, contrary to that advice?
(2) Has the
minister received any other advice from the State Solicitor's Office on
this issue; and, if so, will he table it now so that the Western Australian
public can have clarity on this issue?
407. Mr M. McGOWAN to the Minister for Energy:
I refer to the leaked briefing note that was given to the
minister on 19 July that shows he was advised there would be legal risks
regarding the budget changes to the existing solar feed-in tariff scheme.
(1) Why did
the minister make the decision to rip up contracts, contrary to that advice?
(2) Has the
minister received any other advice from the State Solicitor's Office on
this issue; and, if so, will he table it now so that the Western Australian
public can have clarity on this issue?
AnswerView source ↗
Thanks for the question.
(1)–(2)
Just to clarify: the advice was sent to me from the Public Utilities Office on
9 July; I received it on 23 July. It is a minor issue, but let us be accurate.
The sequence of events was this: the proposal
to alter the feed-in tariff scheme was put. I was told that the State Solicitor's
Office had provided legal advice that it was okay to go ahead.
Ms
R. Saffioti : Whom were you told by?
Dr
M.D. NAHAN : Just hold on; for accuracy, please.
As one does, I asked my department,
the Public Utilities Office—the relevant body that has been supposedly
managing the feed-in tariff from its inception—to provide a legal
briefing on the issue widely. It did so, and I received it on 23 July. I looked
at the advice, and the advice was that there were some problems with misleading
statements on that. That conflicted with what I heard previously, so I had my
staff call the State Solicitor and ask him what was up—what was the
advice. As we looked at the PUO's advice, it got it wrong. It got it
wrong. It is not unusual, but it did. The advice that referred to the risk of
misleading statements—negligent and misleading—referred to the
options taken up in 2011, when the government of the day stopped the scheme and
shifted the feed-in tariff from 40c to 20c for new customers. The risk was that people would have gone out
and signed up with a retailer for a kit with a solar feed-in rebate at 40c a
unit, and by the time it was registered with Synergy and Verve Energy the
rebate would have been 20c and the government would have left them high and
dry. The State Solicitor identified that risk, and for some people out there
that is still a risk. The State Solicitor's advice was quite clear: the
decision posed negligible legal risk for breach of contract under statute or in
tort, including negligent misstatement, and for all practical purposes there
was no legal risk.
Mr W.J. Johnston : What are you reading from?
Dr M.D. NAHAN : My notes, thank you!
Mr W.J. Johnston : So that is not the State Solicitor's
advice?
Dr M.D. NAHAN : Did the member ask the question?
Mr W.J. Johnston : You've got to tell the truth!
The SPEAKER : Member for Cannington, I call you to order for the first time.
Point of Order
Dr M.D. NAHAN : The member for Cannington just made an
accusation that I was not telling the truth.
Mr M. McGowan : He said you've got to tell the
truth!
Dr M.D. NAHAN : No; that is what he said! I ask him to
withdraw.
Several members
interjected.
Mr M. McGOWAN : I have a further point of order. I think
the minister was making a point of order! The member for Cannington said, ''You've
got to tell the truth!'' That is a statement of fact in this house.
Dr M.D. NAHAN : No; by stating that, his accusation was
that I was not telling the truth.
Several members
interjected.
The SPEAKER : Member for Mandurah! Minister, you have made your point.
Questions without Notice Resumed
Dr M.D. NAHAN : I got legal advice from PUO; it was wrong.
They are not lawyers.
Ms M.M. Quirk : Table it!
Dr M.D. NAHAN : The member already has it; it is in the
media—members can find it! The Public Utilities Office provided me with
advice; it was wrong. I never signed off on it. I had my staff go back and ask
what was going on.
Mr B.S. Wyatt : Why would you sign off on legal advice?
Dr M.D. NAHAN : No; the PUO provided me with advice.
Several members
interjected.
The
SPEAKER : Member for West Swan, we
are in the middle of question time; if you want to ask a question, simply ask a
question. I call you to order for the first time.
Dr M.D. NAHAN : The PUO provides me with advice on a whole
range of issues.
Several members
interjected.
The SPEAKER : Member for Victoria Park, I repeat exactly what I said to the member
for West Swan: you are entitled to ask a question. I call you to order for the
first time.
Dr M.D. NAHAN : The PUO provides me with advice, as
requested, on a whole range of issues. They paraphrase State Solicitor's
advice in providing advice to me. They have got it wrong. The advice that they
paraphrased did not relate to the policy issue in question. Upon getting that
advice, I asked my staff to check with the State Solicitor. That verbal advice
was that the PUO got it wrong, and the advice that the State Solicitor had
given to the government was consistent with that: there is negligible legal
risk with the decision that we faced and, indeed, practically no risk
whatsoever.
(1)–(2)
Just to clarify: the advice was sent to me from the Public Utilities Office on
9 July; I received it on 23 July. It is a minor issue, but let us be accurate.
The sequence of events was this: the proposal
to alter the feed-in tariff scheme was put. I was told that the State Solicitor's
Office had provided legal advice that it was okay to go ahead.
Ms
R. Saffioti : Whom were you told by?
Dr
M.D. NAHAN : Just hold on; for accuracy, please.
As one does, I asked my department,
the Public Utilities Office—the relevant body that has been supposedly
managing the feed-in tariff from its inception—to provide a legal
briefing on the issue widely. It did so, and I received it on 23 July. I looked
at the advice, and the advice was that there were some problems with misleading
statements on that. That conflicted with what I heard previously, so I had my
staff call the State Solicitor and ask him what was up—what was the
advice. As we looked at the PUO's advice, it got it wrong. It got it
wrong. It is not unusual, but it did. The advice that referred to the risk of
misleading statements—negligent and misleading—referred to the
options taken up in 2011, when the government of the day stopped the scheme and
shifted the feed-in tariff from 40c to 20c for new customers. The risk was that people would have gone out
and signed up with a retailer for a kit with a solar feed-in rebate at 40c a
unit, and by the time it was registered with Synergy and Verve Energy the
rebate would have been 20c and the government would have left them high and
dry. The State Solicitor identified that risk, and for some people out there
that is still a risk. The State Solicitor's advice was quite clear: the
decision posed negligible legal risk for breach of contract under statute or in
tort, including negligent misstatement, and for all practical purposes there
was no legal risk.
Mr W.J. Johnston : What are you reading from?
Dr M.D. NAHAN : My notes, thank you!
Mr W.J. Johnston : So that is not the State Solicitor's
advice?
Dr M.D. NAHAN : Did the member ask the question?
Mr W.J. Johnston : You've got to tell the truth!
The SPEAKER : Member for Cannington, I call you to order for the first time.
Point of Order
Dr M.D. NAHAN : The member for Cannington just made an
accusation that I was not telling the truth.
Mr M. McGowan : He said you've got to tell the
truth!
Dr M.D. NAHAN : No; that is what he said! I ask him to
withdraw.
Several members
interjected.
Mr M. McGOWAN : I have a further point of order. I think
the minister was making a point of order! The member for Cannington said, ''You've
got to tell the truth!'' That is a statement of fact in this house.
Dr M.D. NAHAN : No; by stating that, his accusation was
that I was not telling the truth.
Several members
interjected.
The SPEAKER : Member for Mandurah! Minister, you have made your point.
Questions without Notice Resumed
Dr M.D. NAHAN : I got legal advice from PUO; it was wrong.
They are not lawyers.
Ms M.M. Quirk : Table it!
Dr M.D. NAHAN : The member already has it; it is in the
media—members can find it! The Public Utilities Office provided me with
advice; it was wrong. I never signed off on it. I had my staff go back and ask
what was going on.
Mr B.S. Wyatt : Why would you sign off on legal advice?
Dr M.D. NAHAN : No; the PUO provided me with advice.
Several members
interjected.
The
SPEAKER : Member for West Swan, we
are in the middle of question time; if you want to ask a question, simply ask a
question. I call you to order for the first time.
Dr M.D. NAHAN : The PUO provides me with advice on a whole
range of issues.
Several members
interjected.
The SPEAKER : Member for Victoria Park, I repeat exactly what I said to the member
for West Swan: you are entitled to ask a question. I call you to order for the
first time.
Dr M.D. NAHAN : The PUO provides me with advice, as
requested, on a whole range of issues. They paraphrase State Solicitor's
advice in providing advice to me. They have got it wrong. The advice that they
paraphrased did not relate to the policy issue in question. Upon getting that
advice, I asked my staff to check with the State Solicitor. That verbal advice
was that the PUO got it wrong, and the advice that the State Solicitor had
given to the government was consistent with that: there is negligible legal
risk with the decision that we faced and, indeed, practically no risk
whatsoever.
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