On Thursday, in a blatant and cynical attempt to avoid transparency, the Government introduced a Bill that gives National Cabinet the status of a 'Cabinet' - meaning that the PMO can now keep its deliberations secret. This nullifies a recent finding by the Administrative Appeals Tribunal (AAT) that the ‘National Cabinet’ was not a cabinet in any real sense of the word, so key documents should be released.
What is the National Cabinet?
The National Cabinet was established in March 2020 to undertake a crisis leadership during the pandemic. As the Conversation explains : 'The national cabinet comprises the prime minister and all state and territory premiers and chief ministers. Basically, it is COAG by another name. Though called a cabinet, the national cabinet is technically an intergovernmental forum. The conventions and rules of cabinet, such as cabinet solidarity and the secrecy provisions, do not apply to the national cabinet.'
However, the Prime Minister's Office contended that the National Cabinet was a subcommittee of the federal Cabinet and therefore it could keep documents secret for 30 years.
Legal challenge
Cross bencher Rex Patrick challenged this thinking in a successful AAT Freedom of Information case, Patrick and Secretary, Department of Prime Minister and Cabinet (Freedom of Information) [2021] AATA 2719. The AAT (Justice White) decided what we knew all along - that the ‘National Cabinet’ was not a cabinet in any real sense of the word. The effect of the decision was that the PMO could no longer resist disclosure of documents from National Cabinet meetings on the basis of cabinet confidentiality.
The government decided not to appeal the decision, given the slim prospects of a successful appeal.
The Bill
Instead the government has taken the path of legislating into existence the state of opacity they have desired since the creation of the National Cabinet. The COAG Legislation Amendment Bill 2021 would amend various Acts to ensure that the definition of ‘Cabinet’ in those Acts includes the National Cabinet. This cannot be seen as anything other than a blatant and cynical attempt to avoid transparency by including within the definition of cabinet something that cannot properly be called a cabinet at all.
Cabinet confidentiality exists to support the principle of collective ministerial responsibility which is central to a true cabinet, members of which are ministers responsible to the same parliament. Yet, as Justice White found, the National Cabinet lacks the requisite features of collective ministerial responsibility to support the assertion of cabinet confidentiality.
Write to your MP
NSWCCL urges the public to write to their MPs and make their voices heard on this issue. Australian governments should not be allowed to avoid scrutiny simply because the new body they created for federal relations is labelled a ‘cabinet’. The Australian public has a right to know about the deliberations of this new body making key decisions about how to handle the COVID-19 pandemic.
