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Monday, February 22, 2010

Howard's kitchen cabinet not the real thing

While making it clear that government leaders are at liberty to establish whatever decision making processes they wish, a decision last week by Deputy President Forgie of the Administrative Appeals Tribunal (Telstra and Department of Broadband, Communications and The Digital Economy [2010] AATA 118) points up the problem that will arise from a Freedom of Information perspective in setting up a group of ministers and treating it as if it is a cabinet committee, even though it isn't. When push comes to shove, as in this case harking back to FOI applications in February and May 2007, documents provided to the group won't qualify as cabinet documents.

After almost writing a book on what constitutes "the government" and related issues and considering the evidence, Deputy President concluded:
When I have regard to all of the matters to which I have referred,  I have concluded that the Senior Ministers’ group was not a committee of Cabinet. It was treated as a group that was analogous to a committee of that sort but its being treated in that way does not make it a committee of that sort. There is no evidence of Cabinet’s having decided that the Senior Ministers would be able to make decisions on certain matters that would be binding upon Cabinet itself, as in the case of the NSC, or that their decisions required Cabinet’s discussion and ratification, as in the case of decisions of the ERC. If the Senior Ministers were a committee of Cabinet, it would be expected that there would have been some formal decision about the status of their decisions. On the evidence I have, there is none. It would be expected that there would be some reference to the work of the Senior Ministers in material available to the public or at least to the legislative arm of government. An obvious place to reveal its existence would have been in PM&C’s Annual Reports. If not there, then it would be expected that information about its existence would have been available from the Cabinet Secretariat as directed by the Cabinet Handbook but it was not. There is no reference to be found. Unquestioningly, the former Prime Minister was within his rights to create the Senior Ministers’ group and to direct its tasks as he would. Having regard to the findings I have made, however, I am not satisfied on the evidence that I have that he established it as a Cabinet committee either on an ongoing or an ad hoc basis.[149]
The decision covers important ground regarding public interest considerations in the internal working document exemption, the subject of another post. The "kitchen cabinet" issues were as follows.
The Special Ministers' Group comprising then Prime Minister Howard, Deputy Prime Minister, Treasurer and Minister for Finance and Administration was first established in February 2002.The Senior Ministers considered eight Cabinet submissions and one Cabinet memorandum.
Each of their decisions was regarded as a final decision of Cabinet and recorded in a Cabinet minute. Some of those submissions had previously been considered by Cabinet on two or three occasions but the Senior Ministers took the final decision. Their second meeting was held on 11 April 2006. In addition to considering matters without submission, they also considered one Cabinet submission and took a final decision on that Cabinet submission. At their third meeting on 27 November 2006, Senior Ministers considered and took a final decision on one Cabinet memorandum. In all, between October 2004 and December 2007, Senior Ministers met on 15 occasions and considered a total of 131 items at those meetings. Of those items, 128 were without submission, two were Cabinet submissions and one was a Cabinet memorandum.[44]
The evidence[108-110] was that meetings of Senior Ministers were supported by the Cabinet Secretariat in a similar way to meetings of Cabinet committees but it was not constituted as a formal committee of Cabinet; deliberations were conducted in accordance with the same principles of confidentiality as apply in relation to meetings of Cabinet committees themselves:  note taking arrangements, document handling procedures, processes for preparing submissions and processes for minuting decisions of Senior Ministers were similar to those which apply to a meeting of a committee of Cabinet.

Documents considered by Senior Ministers took the form of submissions or matters without submission and attachments: the submissions constituted submissions made to Senior Ministers by other ministers, and reflected the views that the sponsoring ministers might be expected to put to Senior Ministers. Senior Ministers might bring additional documents into meetings which were not part of a formal submission.
  
The Senior Ministers meetings were supported by the Cabinet Secretariat and attended by the Secretary of PM&C, as he did for meetings of the Cabinet. Decisions of Senior Ministers were recorded in Cabinet Notebooks and minutes recording those decisions were prepared in the same manner as for other Cabinet decisions. Further, the minutes recording decisions of Senior Ministers meetings were authorised by the Secretary to Cabinet and were released on the CABNET secure computer system in the same way as other Cabinet minutes. From February 2002 until November 2007, Senior Ministers meetings were attended by the Prime Minister, the Deputy Prime Minister, the Treasurer and the Minister for Finance and Administration and decisions were recorded in minutes that did not require endorsement by Cabinet. 

Senior Ministers meetings played a key role during the annual budget process under the Howard Government. It filtered initial budget proposals determining which ones were developed further for consideration by the Expenditure Review Committee of Cabinet (ERC). Senior Ministers meetings also considered some of the more sensitive Budget proposals that may not have been referred to ERC. Since December 2007 the Strategic Priorities and Budget Committee of Cabinet has undertaken the role that was previously undertaken by Senior Ministers meetings.”

All to no avail. Deputy President Forgie found basic elements missing concerning the establishment of the group including the absence of anything regarding the nature of the group's decisions, and whether they were to be subject to ratification; and no reference to the group and its status in material available to the Parliament or the public including in the Cabinet Handbook or the Department's annual report.

Evidence was given that since the election of the Rudd Government, the Strategic Priorities and Budget Committee of Cabinet has undertaken the role that was previously undertaken by Senior Ministers meetings.

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