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Wednesday, October 28, 2020

Cabinet secrecy for the National Cabinet-maybe, maybe not

Seven months after its formation, the National Cabinet has made its way into the just published new edition of the Cabinet Handbook. (Pages 30-31) but is still to get a mention in the Government Directory

Anyone looking for an explanation about what makes the NC and a range of committees and groups that come within its scope (The Council on Federal Financial Relations, any other committees "as required" that the NC establishes, and any National Cabinet Reform Committees) part of the Federal Government Cabinet will be disappointed by the entry in the Handbook.

There is nothing in the National Cabinet section that adds anything to the Prime Minister's explanation that it's part of the Cabinet because he, presumably supported in this by the Premiers and First Ministers of the states and territories, decided it is, and say so.

According to the entry the "National Cabinet operates according to the longstanding Westminster principles of collective responsibility and solidarity." 

Those principles as explained elsewhere in the Handbook (Page 9) are hard to reconcile with what has been on public display in the operation of the National Cabinet. For example:

  • "(O)nce decisions are arrived at and announced they are supported by all ministers."
  • "(A) decision of the Cabinet is binding on all members of the Government regardless of whether they were present when the decision was taken."
  • "The aim is to reach some form of consensus so that the Prime Minister, as chair of the Cabinet, can summarise what the collective decision is for recording in the Cabinet minute.
  • "Members of the Cabinet must publicly support all Government decisions made in the Cabinet, even if they do not agree with them."
  • "Cabinet ministers cannot dissociate themselves from, or repudiate the decisions of their Cabinet colleagues unless they resign from the Cabinet."
  • "It is the Prime Minister’s role as Chair of the Cabinet, where necessary, to enforce Cabinet solidarity."
  • Observance of the two principles is "entirely dependent on a commitment to three important operational values: consultation; confidentiality; and respect forthe primacy of Cabinet decisions.

Officials from Department of Prime Minister and Cabinet, Australian Government Solicitor and Attorney General's Department were not able to explain more fully in Senate Estimates this week.

PMC 

Senator Siewert .. Has.. the claim that national cabinet has the same provisions as cabinet, been raised by the states and agreed to by the states and territories?

Ms Foster  (Deputy Secretary) : National cabinet was established by agreement of all first ministers, and they agreed that they wished national cabinet to be established as a subcommittee of the federal cabinet with all of the same provisions applying to it.

Senator SIEWERT: Under what legal basis is that? Just them agreeing to it doesn't make it so.

Ms Foster : Senator, as you know, cabinet operates by longstanding convention, and this committee was formed by the agreement of all the members under those provisions.

Prompting Senator Wong to comment

They're out there smashing each other publicly. Ministers generally don't do that. And it's not bound by consensus. Sorry, but I just think you shouldn't give evidence that's not correct. It might be the Prime Minister's line, but you should not give that evidence. 

Later questioning saw officials explain the Australian Health Protection Principal Committee and
the COVID committee in preparing material for national cabinet consideration, are subject to the cabinet confidentiality provisions.

Attorney General's Portfolio 

Answers to questions by the Australian Government Solicitor Mr Kingston bear a close relationship to a Yes Minister script. Those from the Secretary of the Department Mr Moraitis more closely resemble Sergeant Schultz- "I know nothing". Defies summarising. Full text below. 

Next-the Tribunal

Senator Patrick is in the Administrative Appeals Tribunal challenging an FOI refusal of access to documents on the basis that national cabinet is covered by the cabinet document exemption. 

In this post in June I suggested the National Cabinet lacked the essential characteristics of a cabinet that an earlier Tribunal decision described as relevant in deciding whether the exemption applies. 

Senator Carr in estimates cited Constitutional law professor Cheryl Saunders saying, 'It's impossible for a meeting of the first ministers to operate according to the longstanding Westminster principles of collective responsibility as is claimed in the new Cabinet Handbook."

Time will tell. 

Tuesday, September 08, 2020

Major parties respond with faint praise but nothing else to Senator Patrick's FOI reform bill

 In 2018 Senator Rex Patrick sponsored the introduction of the Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill and made the second reading speech, the bill was referred to the Legal and Constitutional Affairs Legislation Committee, the Committee report recommended the Senate not pass the bill (Senator Patrick and Greens senators dissenting)......

And there the bill sat until last week when it came on for Senate debate for 70 minutes before time expired.

The major parties did not support the bill in 2018 and reaffirmed that in 2020, so its fate is clear. 

Senator Patrick managed to get an acknowledgement that the government respects the intent to 'make government more transparent and more accountable, to assist citizens and the media to access information under the law and to improve the effectiveness of Australia's freedom-of-information laws' and from Labor that the bill was "well intentioned, and many of the proposals it puts forward warrant close examination' , but that was as far as they went.

Among the remarks worth highlighting:

Senator Amanda Stoker (Queensland, Liberal Party)

The government remains steadfast in its support for transparency, for the value of the freedom-of-information arrangements and for providing substantial funding to the Office of the Australian Information Commissioner so that it can do its job of making sure Australians can access important information from governments.... the objectives of transparency, accountability and freedom of information are objectives that are highly valued and shared by this government.

(Spoken apparently with a straight face)

Senator Murray Watt (Queensland ALP)

This government hates scrutiny. This government has contempt for basic notions of accountability. This is a government that prefers to operate in the shadows. It is not difficult to see why, because, every time sunlight does find a way in, Australians do not like what they see. Whether it's sports rorts, Angus Taylor's latest outrage, the awarding of contracts worth hundreds of millions of dollars to companies headquartered in beach shacks or the government's shocking and scandalous record on aged care, the Morrison government does not want Australians to know what it is up to. Make no mistake: that is why the government hates our FOI laws and treats those laws with such contempt. That is also why the government continues to starve the Information Commissioner of resources—so that it takes the commissioner so long to review a rejected freedom-of-information request that the applicant just gives up.

....since this Liberal government took power in 2013, they have been at war with freedom of information, at war with transparency, at war with accountability to the Australian people, who elected them, so Senator Patrick is to be congratulated for bringing forward this bill, which demonstrates his belief that FOI laws need to be strengthened and in the need to undo some of the harm that the Morrison government has done to our democracy in its trashing of FOI and its obsession with secrecy and cover-up.

(Spoken without reference to the fact Labor has not put forward comprehensive, concrete reforms proposals during seven years in opposition.) 

Senator Larrisa Waters (Queensland Australian Greens)

...this is the least transparent government in history.

(Spoken ignoring the fact any government before 1982 when FOI was introduced would beat all since for the least transparent trophy.)

Senator Paul Scarr (Queensland Liberal Party)

...about resourcing. I think it's a key point, to be frank. It's absolutely a key point. If we are going to have an FOI Act regime, there needs to be appropriate resourcing provided for it. It doesn't matter who's in government; there needs to be that appropriate resourcing. When I read the report of the Legal and Constitutional Affairs Committee, page 9, paragraph 2.9 says: 

When asked whether there needed to be more resources at both the early resolution stage, as well as at a later stage, to enable more Information Commissioner reviews to be finalised earlier, Ms Falk stated:

'At this point in time, that's not what I'm seeing. I'm seeing that where I need to focus is on working with government to increase the offices resources to increase the capacity at the case-officer level and potentially, the executive level. If that were to be increased and then have a flow-on effect to more Information Commissioner reviews being required of the commissioner and that being something that's not manageable within other functions then that would be something that I would bring to the attention of government.'

Those are the actual words from the Information Commissioner in the report. In my respectful view, they do not support the characterisation of this matter by Senator Watt,

(Spoken in apparent ignorance of the fact that while the Information Commissioner did say this in 2018, she said something different in Senate Estimates in October 2019:

Senator KIM CARR: Did I hear you correctly in your opening statement? Did you actually say that you're under-funded?  

Ms Falk: I did raise the issue of resourcing in terms of FOI. It's a matter that's been discussed before this committee on a number of occasions, where I've indicated that really where the stresses in the system lie, from the OIC's perspective, are with the need for more staffing. I've set out the fact that we've had an 80 per cent increase in Information Commissioner reviews and I have worked very purposefully since being in the role on looking at how we can increase our efficiency. Over that same period of time—the four-year period—we have increased our efficiency by 45 per cent. But I've formed the view, having conducted a number of reviews of the way in which we're carrying out our work, that the only way in which the gap is to be bridged is for additional staffing resources to be provided

... 

Senator KIM CARR: I see. That's where the confusion lies. So, since August last year, you've been seeking additional support?  

Ms Falk: Sometime after that date, Senator. 

 Senator KIM CARR: And what was the government's response? Ms Falk: The government has acknowledged my request and is working through it in terms of normal budget processes.  

..

Senator KIM CARR: So how much did you ask for?  

Ms Falk: Senator, you appreciate that the information I've provided to government is through budget processes. I can give you an indication that, at present, my funding envelope allows for around 19 case officers to work on FOI reviews—there are additional staff who work on the FOI function more broadly—but just looking at FOI reviews, there'd need to be at least a half increase in the number of those staff.

 Senator KIM CARR: What you mean by 'a half? 

 Ms Falk: A half again. Senator KIM CARR: So—Ms Falk: Another nine staff. 

...

Senator KIM CARR: What will that cost in terms of your normal profile?

.. 

Senator KIM CARR: Can you take that on notice, please?  

The OAIC subsequently provided this response to the question: 

"The Office of the Australian Information Commissioner has estimated that the annual cost to fund nine (9) additional staff to undertake FOI regulatory work, including processing IC review applications, would be approximately A$1.65 million with an additional capital amount of approximately A$0.3 million for accommodation in the first year." 

.....

We live in hope....

Thursday, August 20, 2020

Sports rorts-would Sir Humphrey be proud?

Some exchanges during the two hours Secretary of Department of Prime Minister and Cabinet Phil Gaetjen spent before the Senate Select Committee on Administration of Sports Grants Committee on 22 July- the sports rorts committee- shouldn't stay buried away in the Hansard.

The backdrop is questioning about Mr Gaetjen's report undertaken at the request of the Prime Minister that led to the minister's resignation. And is subject to a claim of public interest immunity on grounds it is a document prepared for submission to cabinet so not available to the Committee.

Headings dedicated to the memory of Sir Humphrey Appleby:

Well, I did talk to the Minister 

Senator GALLAGHER: As part of your report, you didn't interview the Prime Minister specifically? 

Mr Gaetjens : No.

 Senator GALLAGHER Did you interview any of Mr Morrison's staff as part of your report?

Mr Gaetjens : No. My report was with respect to the minister's apparent breaches of the status of the ministerial code of conduct.

 Senator GALLAGHER Did you interview any of Senator McKenzie's staff?

Mr Gaetjens : I certainly had discussions with her chief of staff, knowing of course that, when I conducted my inquiry, the senator was in a different ministerial position. But I had no discussions with her staff when she was Minister for Sport.

Senator GALLAGHER So, as part of this, you didn't interview the staff of Minister McKenzie's office when she was Minister for Sport?

Mr Gaetjens : I think she was Minister for Sport months before the inquiry happened.

Senator GALLAGHER Yes. So you didn't go back to speak to those

Mr Gaetjens : No.The minister was responsible for the actions of her staff, so the interview with her, I thought, was sufficient.

Procedures, process? Nothing to worry about there!

Mr Gaetjens :.... I think what we did was, through my report ... basically approach the outcomes of all three rounds of the funding. I wasn't necessarily interested in the process; it was the outcomes of the funding round compared to—

Senator GALLAGHER But the process is pretty important here, isn't it, in terms of allegations of pork-barrelling and political interference? You would have thought the process leading to those decisions—

Mr Gaetjens : The process was fully outlined in the Auditor-General's report.

Senator GALLAGHER Indeed, which led to you being commissioned to conduct this assessment of whether fairness under the ministerial code of conduct was adhered to. The process is pretty important.

Mr Gaetjens : I was asked to ask about apparent breaches of the ministerial code of conduct. I was not asked to audit the sports administration program. That was my role.

Senator GALLAGHER....... I would have thought the process, including the communications between the Prime Minister's office and the minister for sport's office at the time was pretty central to you forming a view about whether there had or had not been a misconduct or whether the fairness obligations of the ministerial code of conduct had been met.

Mr Gaetjens : I will just repeat what I said: I was asked under paragraph 7.4 of the standards. The Prime Minister may seek advice from the secretariat of the Department of the Prime Minister and Cabinet on any matters within the standards. My focus was on whether the minister breached the standards.

The Auditor-General had done a report with respect to the administration of the program, and I used that report largely as the basis, with other information collected from the Department of Health and from questions asked of Sport Australia and others. ...... In the Auditor-General's report there was no mention of discussions or emails between the Prime Minister's office and the minister. In fact, it's the minister's actions that I was inquiring into.

 The Caretaker Conventions file was closed after sending a memo, no reason to open it since.

Senator GALLAGHER Mr Gaetjens, your report also doesn't note the two decision briefs authorising the expenditure of the $40 million that was sent to the Prime Minister's office in the hours after the election was called and the caretaker conventions were in place. Why is that?

Mr Gaetjens : Because it wasn't known at the time   

Senator GALLAGHER  In the evidence that you looked at, in terms of formulating your report, that did not come to your attention: that, following caretaker kicking in, decisions were still being made between the minister's and the Prime Minister's offices? You weren't aware of that? No-one told you that?

Mr Gaetjens : No.

Senator GALLAGHER So the first you knew about that was in one of these hearings?

Mr Gaetjens : Correct...

Senator GALLAGHER Were you concerned about that?

Mr Gaetjens : Not at the time, because I wasn't aware of it.

Senator GALLAGHER No? Were you concerned when you found out that decisions were being made after caretaker had kicked in, in allocating taxpayer funds?

Mr Gaetjens : Decisions can be made after the caretaker period starts. Usually, when caretaker starts, departments are advised to follow the guidance and advice of the Prime Minister and Cabinet. It is the departments and ministers who keep on making those decisions. The PM&C does not take over the decision-making ability. Everything is considered in the context of the transaction or decision being made with respect to scope, scale, importance and sensitivity, so I can't give you a one-size-fits-all answer as to whether a decision should or should not have been made in caretaker. It would relate to the actual circumstances of it being made.

Senator GALLAGHER Well, we've got an actual circumstance here. Does it bother you that $40 million of taxpayer funds were signed off after caretaker kicked in, going to projects in seats that the government was trying to win? Does it bother you, or do you think it's an appropriate use of taxpayer funds?

Mr Gaetjens : I would have to look in more detail at the actual decisions that were made.

Senator GALLAGHER Oh, come on! Mr Gaetjens, you're the head of the Public Service. It doesn't bother you that taxpayers' funds were being spent after caretaker kicked in. Extraordinary!

Mr Gaetjens : If those decisions were made with the advice or guidance of Prime Minister and Cabinet, of which at that time of course I was not a part—

Senator GALLAGHER Were they? Have you checked? Do PM&C have a view, or didn't they mind either?

Mr Gaetjens : My understanding is that advice was not sought, but I'll leave that to people who were there at the time.

CHAIR: But, when you became aware through the work of this committee or through media reports that it had happened, surely you would have then gone, 'We need to have a look at this'?

Mr Gaetjens : By that time the minister had resigned.

CHAIR: Sure.

Mr Gaetjens : Why does one need to have a look at something when the minister has resigned?

CHAIR: The minister put out a statement saying that she had no knowledge that these changes were made after she signed the brief.

Mr Gaetjens : I'm sorry, I've got no role in that. The event had happened. The minister had resigned. There was this inquiry. There'd been an Auditor-General's inquiry. What else could I do? I was asked to inquire about the minister's apparent breaches of the ministerial standards. I did that. She resigned.

Mr Gaetjens : Yes, and then the minister put out a statement when people became aware that there were changes made after she'd signed the brief saying that she'd no knowledge of that. Surely, as the head of the PM&C, you would go: 'Wow, what has gone on there? We need to get to the bottom of that.'

Mr Gaetjens : As the head of PM&C and as a public servant, I'm an adviser, not a decision-maker.

Senator GALLAGHER But you lead the Public Service, and appropriate adherence to caretaker conventions is pretty fundamental to an independent and effective public service. Surely you have a view. It's extraordinary.

The Postal Service? That Trump fellow is onto something

Senator GALLAGHER:....In terms of commissioning the report, Mr Gaetjens, Ms Foster told the finance and public administration committee the Prime Minister or his office provided oral advice of the request on Friday 17 January, and a letter dated 17 January was received on Monday 20 January. Does that adhere to your recollection?

Mr Gaetjens : Yes

..... Senator GALLAGHER.... Why did the letter take until Monday 20 January to turn up, just out of interest? 

Mr Gaetjens : I have no idea.

For heavens sake, we can't have the name of a senior staffer to the PM brandied about!

Senator Rice In the time I've got left, I want to go to issues regarding the breaches of the ministerial standards. You said in response to Senator Gallagher's question that the request for you to undertake the work was a call from a senior adviser. What was the role of that adviser?

Mr Gaetjens : I didn't say 'senior adviser'. It was a senior person in the Prime Minister's office.

Senator Rice Can you tell me what their role was?

Mr Gaetjens : I think that would identify them.

Senator Rice Was it the senior adviser for infrastructure and sport, or the senior adviser for backbench liaisons?

Seantor Abetz That would identify them!

Mr Gaetjens : It was a senior adviser in the Prime Minister's office—sorry, it was a senior staff member in the Prime Minister's office, not necessarily a position of senior adviser. Can I also say that that followed with a letter from the Prime Minister.

 Can I tell you the legal authority for the minister to make decisions? No I can't

Senator GALLAGHER I go now to the legal authority. You say the guidelines authorise Senator McKenzie to provide final approval for projects and authorise the minister to take other factors into account when deciding which projects to fund. You conclude that Senator McKenzie acted within the remit of the guidelines. Regardless of what the guidelines say, it matters whether the decision-making itself was lawful. Would you agree?

Mr Gaetjens : I think that has been covered by people more confident than I to talk about legal issues.

Senator GALLAGHER So can you tell us what was the legal authority for Senator McKenzie and not for Sport Australia to be the decision-maker?

Mr Gaetjens : No, I can't. I am not a lawyer. I think that should be addressed to other people.

Senator GALLAGHER But you have formed the view that the guidelines authorised her to make those decisions and therefore those decisions were lawful?

Mr Gaetjens : My inquiry covered a number of decisions that had been made. They were historical decisions that had been made. I then took upon the fact that those decisions had been made. I was then asked to look at whether in making those decisions there was a breach of the standards. That is the logic that I follow. I think I had also known at that time that the Prime Minister had asked the Attorney-General to provide a view about the legal status.

Senator GALLAGHER The Auditor-General said he can find no evident legal authority for Senator McKenzie's decision-making. Is the Auditor-General wrong?

Mr Gaetjens : I don't have a view on that. It is not in my purview or competence to answer that question.

Senator GALLAGHER As head of the Public Service, I presume this is a matter of interest to you about legal decision-making. Have you taken any advice based on what the Auditor-General found, because I presume it has wider application across the Public Service than just this program.

Mr Gaetjens : I am aware now of what the Attorney-General found.

Senator GALLAGHER You are talking there to the Attorney-General's finding about the legal decision-making?

Mr Gaetjens : Yes.

Senator GALLAGHER The University of Melbourne's Professor Cheryl Saunders and Professor Michael Crommelin said:

If the grants were made pursuant to the Sports Commission Act, they are invalid for failure to comply with the provisions of the Act. The Act confers on the Commission, not the Minister, the power to make grants for the purposes of the Act.

Are Professor Saunders and Professor Crommelin wrong?

Mr Gaetjens : I would have no confidence to answer that question. I am not a lawyer, I do not have legal qualifications, I am not a practising lawyer, so, again, I don't think it is an answer I can provide. All I do know is that the Attorney-General has reached his own view and I think the government would probably act according to what the Attorney-General thought.

Senator GALLAGHER The University of Sydney's Professor Anne Twomey says there appears to be no legal basis for Senator Mackenzie to be the decision-maker. Is Professor Twomey wrong?

Mr Gaetjens : My previous answer applies.

University of Adelaide's Emeritus Professor in-law, Geoff Linnell says, 'Senator McKenzie likely had lack of legal authority to either approve or participate in the decision making.' Is Professor Linnell wrong?

Mr Gaetjens : My previous answer applies.

Senator GALLAGHER So you just rely on the Attorney-General's advice to you or advice to the government?.....

Mr Gaetjens : A legal question was asked of a legally competent person....

.......................................

Added comment:

Next day former Deputy Secretary of the Department of Finance Stephen Bartos testified about the legality issue thus 

"My view is that the minister didn't have the authority to make those grants under section 83 of the Australian Constitution. Maybe it's because I worked for many, many years in the finance department, but I had it drummed into me that, under section 83, no money shall be drawn from the Treasury of the Commonwealth except under appropriation made by law—that is, ministers can't spend money unless the parliament has given them the authority to spend that money. Without that clear authority, ministers can't just spend as they wish. There are circumstances, like the advance to the finance minister, where ministers are given some discretion. But the parliament, in the case of the advance, puts a number of reporting and accountability requirements around that, precisely because it's unusual. Ministers are constrained by what the legislation says, and it does appear, looking at the legislation that governs Sport Australia, that not only did they not delegate to the minister the power to make grants; they actually may not have been able to, in any case."