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Legal experts are questioning the basis on which national cabinet deliberations are deemed to be secret, and the issue has led to an Administrative Appeals Tribunal case. By Karen Middleton.

Challenging the secrecy of national cabinet

Some of Australia’s most eminent lawyers are questioning Prime Minister Scott Morrison’s use of federal cabinet conventions to keep secret the proceedings of his Covid-19 national cabinet and the information given by the committee of doctors advising it.

High-profile barristers Bret Walker, SC, and Geoffrey Watson, SC, and University of Sydney law professor Anne Twomey variously describe the idea that Morrison’s fortnightly consultation with state and territory leaders amounts to a cabinet as “inappropriate”, “ludicrous” and “fundamentally flawed”.

Next month, the Administrative Appeals Tribunal (AAT) will begin hearing a legal challenge to the claim that national cabinet is an offshoot of the federal cabinet and as such its deliberations should be kept secret.

The Office of the Australian Information Commissioner has indicated the prime minister may be required to take the witness stand to justify that position.

Independent senator Rex Patrick, formerly of Centre Alliance, mounted the case after the prime minister’s department rejected two applications for documents under the Freedom of Information Act. Patrick sought a review from the Information Commissioner, who found the issues were complex, lacked legal precedent and should be referred to the AAT.

The government’s secrecy claim relies on the national cabinet being an extension of the cabinet office policy committee, which Morrison created when he became prime minister in 2018. Morrison is the committee’s only permanent member. Theoretically this allows him to define virtually any meeting he attends as a meeting of that committee, rendering it exempt from disclosure obligations. This is the arrangement he has used to cover national cabinet.

On that basis, the Department of the Prime Minister and Cabinet is also refusing to answer questions from the senate’s Covid-19 committee about national cabinet operations.

The same argument is being used to block access to information from the Australian health protection principal committee (AHPPC), which has been the primary source of advice upon which national cabinet members have based decisions to impose Covid-19 restrictions on business and daily life. The government has argued that the AHPPC is an offshoot of national cabinet, so its advice is also protected. The designation only covers AHPPC material created after national cabinet’s formation on March 13.

The government’s definitions do not block all information from national cabinet. Morrison outlines its decisions at a news conference after each meeting and proposals often also appear in the media in advance.

A source familiar with national cabinet’s operations has told The Saturday Paper that almost all of the group’s discussions are made public through one of those two avenues.

It appears the prime minister’s main reason for insisting on official secrecy is to ensure he is the one who determines what is disseminated, how and when.

Anne Twomey, Bret Walker and Geoffrey Watson all argue the government’s position is hard to justify. Each says that national cabinet is not a cabinet at all, because its members serve nine different parliaments.

“Historically, it was the advisers of a king who met in private in a small room that was known as a ‘cabinet’,” says Twomey. “The idea is certainly that they are responsible to a single parliament. I’m not aware of any case where you have a cabinet that is made up of people who are responsible to different parliaments.”

Twomey says intergovernmental bodies’ discussions have always been subject to a degree of confidentiality, but not as much as cabinet.

“Changing the name of a body does not change the nature of its existence,” she says. “… It is fundamentally flawed reasoning to suggest that the ‘national cabinet’ is itself a genuine cabinet that attracts cabinet conventions or, even worse, that it is a committee of the Commonwealth cabinet, requiring the premiers to be bound by [its] overriding decisions … and responsible to the Commonwealth parliament.”

Bret Walker, who served as Australia’s first independent national security legislation monitor, notes that the cabinet convention carries an implied expectation of solidarity – of not publicly expressing dissent. Any member who cannot uphold that requirement is expected to resign. He says that can’t apply to a group from different governments.

“It’s a pity the word ‘cabinet’, with its established constitutional and political meanings, has been used for a group which is composed of leaders elected by different voters and from opposed parties, not in a coalition, so that notions of solidarity or resignation in the case of dissent are meaningless,” Walker tells The Saturday Paper. “It is completely inappropriate.”

He says some secrecy is necessary, but there are other ways to achieve it.

“The notion of confidentiality, Chatham House-style, in such a group is a different matter and has much to recommend it.”

Geoffrey Watson, a director of the Centre for Public Integrity, says the bedrock concept of “responsible government” – that everybody is responsible to somebody – cannot possibly apply to national cabinet.

“The idea that you could take somebody from outside [the federal government], who is not responsible to the people or to the parliament, is just preposterous,” he says.

He argues there is no solidarity when the prime minister is challenging other first ministers’ decisions in public. “It evaporates the moment that he says the decisions made by members of cabinet are ones with which I disagree,” Watson says.

The regular Council of Australian Governments’ meeting (COAG) was renamed “national cabinet” on March 13, at Morrison’s suggestion. On May 29, he made the change permanent.

The Saturday Paper understands Western Australian Premier Mark McGowan was the instigator, remarking that national cabinet functioned better as a streamlined, first-ministers-only body than its bloated predecessor, which had many spinoff groups.

Morrison returned with a proposal involving changing the COAG process so all agreements would go to treasurers and then national cabinet before finalisation. The restructure suited the premiers and chief ministers, many of whom were unhappy that their own portfolio ministers often committed to expensive agreements at COAG side meetings before consulting them.

They also agreed to exclude the Australian Local Government Association, which represents more than 500 local councils.

In the early months of the pandemic, national cabinet appeared to be a model of solidarity. This fractured most publicly on September 4, when some states refused to back Morrison’s hotspots proposal for reopening internal borders.

After that, the prime minister announced national cabinet would work on majority rule going forward, rather than consensus, noting it was “a change in the way our federation works”.

The cabinet helps Morrison retain a co-ordinating role in the pandemic, having sustained political damage during the summer’s bushfires when he sheeted responsibility to the states, saying: “I don’t hold a hose, mate.” The rebadging of COAG has also given him control of the messaging.

Some are drawing parallels with his management as Immigration minister of Operation Sovereign Borders, when he refused to answer questions about “on-water matters”.

As an institution, federal cabinet relies on convention because there is no statute defining its functions. Nor is it mentioned in the constitution. The only laws acknowledging cabinet are the Freedom of Information Act and the National Archives Act. This means the only way to clarify its role is to challenge decisions made under those laws.

Rex Patrick hopes his case will achieve that. “A national council is the arrangement the PM should have adopted,” he tells The Saturday Paper. “Instead, he set up the national cabinet as he did, butchering the well-established doctrine of cabinet and overstepping secrecy boundaries which must be respected in a system of responsible government.”

Patrick predicts the approach will be found to be unlawful.

But some legal experts warn he also risks it going the other way. A decision in Morrison’s favour would allow him to apply his cabinet definition even more broadly.

Patrick has accused the government of hypocrisy for condemning Beijing’s secrecy during the pandemic then employing the same tactics.

Morrison and his department have strenuously defended their approach.

“The statements from the prime minister and the outcomes of the decisions that are being taken by national cabinet have been the most transparent that I’ve ever seen,” Phil Gaetjens, secretary of the Department of the Prime Minister and Cabinet, told the senate’s Covid-19 committee. “… I see no hypocrisy in that whatsoever.”

The case before the AAT begins on November 23.

This article was first published in the print edition of The Saturday Paper on Oct 17, 2020 as "Cabinet confidential".

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Karen Middleton is The Saturday Paper’s chief political correspondent.