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A scathing rebuke in the Administrative Appeals Tribunal could have far-reaching consequences for Scott Morrison’s secret committees. By Karen Middleton.

Legal loss a blow for Morrison secrecy

The prime minister may no longer be able to use a special one-man cabinet committee to so readily conceal government advice from public view, after a judge rejected it as a way to keep national cabinet’s deliberations secret.

Contrary to the Department of the Prime Minister and Cabinet’s insistence, a ruling by Justice Richard White in the Administrative Appeals Tribunal (AAT) confirmed that all working documents for the meetings of federal, state and territory leaders are accessible under freedom of information law.

The government cannot cover them retrospectively by taking them to federal cabinet either, because their legal status is based on their purpose when they are created.

The ruling potentially has implications beyond national cabinet because of the mechanism Prime Minister Scott Morrison used to extend federal cabinet’s secrecy provisions. That mechanism is the cabinet office policy committee, or COPC.

Since creating it in 2019, Morrison has used this committee, of which he is the only permanent member, to extend cabinet confidentiality over anything he wants shielded from public view.

He simply declares particular meetings to be configurations of the policy committee and asserts cabinet secrecy over their deliberations. This is how he claimed cabinet secrecy when the old Council of Australian Governments was renamed “national cabinet” last year.

But Justice White ruled that simply calling national cabinet a federal cabinet committee did not make it one. He confirmed that a cabinet committee featured members of a single cabinet, from a single government and parliament. While he did not rule out external members, he found that having one federal cabinet minister was not enough.

It’s expected the senate’s Covid-19 inquiry will now seek to have numerous documents handed over, after various departments first refused access to them, citing cabinet secrecy via COPC.

Justice White was ruling on an application to the AAT by independent senator Rex Patrick, made after the prime minister’s department rejected two freedom of information (FOI) requests last year.

Patrick had applied to access minutes of one national cabinet meeting and documents that described its establishment from another. The department refused, saying they had the status of federal cabinet documents, which are protected for at least 20 years.

At the tribunal, it also argued that releasing the documents could damage federal–state relations – an argument it did not make in the initial refusal.

Having read the minutes, Justice White responded that not only were they unlikely to damage relations, they were also surprisingly perfunctory and lacked the required detail of ordinary minutes, including how decisions were reached. He found in favour of Patrick and granted him access, delayed for 28 days while the government decides whether to appeal.

Patrick calls it “a fantastic win for transparency and accountability”.

The judge ridiculed the government’s insistence that the prime minister could determine “what a cabinet committee is”. He said that amounted to arguing that any committee could be a cabinet committee “merely because the prime minister of the day has purported to establish it as such”.

“This premise is unsound,” he wrote. “… A committee does not become a committee of the cabinet for the purposes of the FOI Act merely by being given that name.” If that were the case, any group could be made a cabinet committee “merely by designation”.

Former New South Wales Supreme Court judge Anthony Whealy, who now chairs the Centre for Public Integrity, suggests that is exactly what Scott Morrison has been asserting. He tells The Saturday Paper Justice White has exposed Morrison’s construct as “a contrivance”.

“Fundamentally, what he’s done,” Whealy says of the prime minister, “is to create a device that he hopes will bring all these entities under the umbrella. But it is a device and it’s an illusory device.”

The prime minister has used that device to shield the work of other bodies, designated as versions of COPC. Documents they produce and receive have been declared exempt from FOI access as a result.

These include the government’s key Covid-19 pandemic health adviser, the Australian Health Protection Principal Committee. They also include the National Coordination Mechanism, a grouping of federal, state and territory ministers dealing with non-health-related aspects of pandemic management, and the former National Covid-19 Coordination Commission.

There have been meetings on naval shipbuilding and on the JobKeeper payment.

Energy Minister Angus Taylor is understood to have convened a group of colleagues using the COPC to discuss energy policy, which is being labelled as a subcommittee. And it appears that an as-yet-unpublished report by Energy Security Board chair Kerry Schott on proposed changes to the national electricity market was designated – before the AAT ruling – as headed for national cabinet, to protect deliberations on it from scrutiny.

The AAT ruling means the prime minister will now need to ensure other cabinet members are present at COPC meetings in order to claim cabinet secrecy over the various incarnations of his committee. Only future legal challenges to FOI refusals can determine if that is enough to keep them secret.

The Saturday Paper asked the prime minister’s department for a full list of bodies tied to COPC. It indicated it was working on a reply, but then said the request had to go to the Prime Minister’s Office.

A spokesperson for the prime minister provided only a description of the committee, which is publicly available in the government directory. It says that the committee “considers major policy issues on an as-needs basis” and that this includes “early-stage consideration of strategic issues” and “specialist advice on nationally significant issues and rapidly evolving situations”.

The spokesperson added that the prime minister’s new cabinet taskforce on women’s safety and economic security is also “constituted as a cabinet office policy committee”.

But they refused to provide a full list.

“COPC meeting agendas are protected, cabinet-in-confidence, the same as cabinet, ERC [expenditure review committee] or NSC [national security committee] meetings,” another spokesperson said.

Anthony Whealy describes White’s ruling as “a very refreshing indicator” that courts and tribunals are not going to accept opinions from politicians or bureaucrats without subjecting them to scrutiny.

“Whether it’s a one-person committee or whether it’s a more-than-one-person committee, I think they will be prepared to scrutinise to ascertain the reality of the situation,” Whealy says. “The reality is very clear in Justice White’s view: that this in no way could be regarded as a policy committee of the cabinet.”

Former Victorian Court of Appeal judge Stephen Charles calls it “a terrific judgement”.

“It seems to me very well put together and virtually impossible to appeal,” Charles tells The Saturday Paper. “It’s very significant in terms of the very deep attempts this prime minister and this government are making to shroud their deliberations in secrecy as much as they can.”

UNSW law professor George Williams calls it “an important and really significant judgement for accountability” that may reach beyond national cabinet.

“The implications may well be larger, because it’s a very thorough judgement,” Williams says. “It sets up a test as to whether other bodies might well be [affected].”

Williams says it’s also a check on “ever-increasing cabinet secrecy”.

“We’re dealing with the most extreme uses of power we’ve seen in Australia since World War II,” he says, “and that calls for more accountability, not less.”

In parliament this week, Rex Patrick said it would be “improper” for the government to appeal the decision. He also said former attorney-general Christian Porter should be held accountable for endorsing the position.

“How did Mr Porter get this so wrong?” Patrick asked. “How was this unlawful construct initiated and then operated?”

Justice White was scathing about the evidence from the prime minister’s departmental secretary and respondent in the case, Phil Gaetjens, and cabinet division head Leonie McGregor.

He noted that the department had initially given him the wrong documents and that their evidence had been factually incorrect and involved “circular reasoning”.

White said the pair had held themselves as expert witnesses, which on this issue they were not. They had given second-hand testimony about national cabinet’s creation and asserted that, because they weren’t cross-examined on it for that reason, it should have more weight.

“Quite apart from the identified deficiencies, the evidence of the respondent [Gaetjens] and Ms McGregor is, in material respects, inconsistent with other evidence, including the [agreed] facts,” Justice White wrote. “… Accordingly, I do not regard this as a persuasive consideration.”

Sydney University law professor Anne Twomey says the criticism was deserved. She calls the department “disorganised, shambolic and disrespectful of the legal process”.

“In days gone by, the department was full of extremely competent people – the traditional mandarins,” she says. “Look what’s coming out of it now.”

Twomey agrees with Justice White’s findings and says the claim that national cabinet was part of federal cabinet was a “ruse”.

She says the judgement may have wider implications for other constructs of the cabinet office policy committee. “But the problem is, they always come back with some kind of exemption.”

Even if it doesn’t pursue a successful appeal, Twomey believes the government will find another way to withhold documents it doesn’t want scrutinised.

“They will usually find some other ground to make sure that you can’t get them,” she says. “… I don’t think the government will give up that easily. I don’t think the game is over.”

This article was first published in the print edition of The Saturday Paper on Aug 14, 2021 as "Legal loss a blow for Morrison secrecy".

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