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Friday, October 01, 2010

A cabinet minister at the table does not a cabinet committee make.

Dennis Shanahan in The Australian says new committees announced this week by the Gillard government to revisit a minerals tax and carbon tax "are built on the failed foundations of Labor's first-term attempts," and that the latter, linked to cabinet by minister Combet is guaranteed secrecy and "protection from Freedom of Information requests.." Maybe he's right on the first point but it ain't necessarily so when it comes to the second, unless some steps are taken to do more than put a senior cabinet minister in charge.

Prime Minister Howard set up a kitchen cabinet in 2002 known as the Senior Minister's group. Comprised entirely of ministers it was for this reason off to a better start than the climate change committee (two cabinet ministers plus up to five or six members of parliament) in being taken to be a cabinet committee, and was aided by the fact that Howard and others including the cabinet secretariat treated it as such. But as reported in this post in February, Deputy President Forgie of the Administrative Appeals Tribunal in a Freedom of Information decision said that while prime ministers were free to establish any committee or decision making process they like, the establishment of this committee and other factors meant it lacked essential characteristics that would give it cabinet committee status:

" ... 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]
Aspects of the operations of the climate committee might be protected from disclosure under the FOI act for other reasons, but blanket protection arising simply from minister Combet's presence won't cut it.

(Update: The terms of reference for the committee which according to the media release "will report to Cabinet, through the Minister for Climate Change and Energy Efficiency, Greg Combet" but with the Prime Minister not Combet in the chair, include the following provisions relevant to this issue.

1. The Multi-Party Climate Change Committee ('the Committee') is established to:
1.1. consult, negotiate, and report to the Cabinet, through the Minister for Climate Change and Energy Efficiency, on agreed options for the implementation of a carbon price in Australia; and
1.2. provide advice on, and participate in, building community consensus for action on climate change.

2. The Committee decisions will be reached by consensus or, if there are differences that remain after good faith discussions, these will be presented to the Cabinet, but with every effort made to produce workable options...

8. The Committee will ensure its deliberations and papers remain confidential to the Committee and the Cabinet until a final position is agreed or all parties to the Committee agree otherwise. At its initial meeting the Committee will determine the mechanism by which it will provide updates of its work.

12. The Committee would generally meet in the Cabinet room. The Cabinet Division of the Department of Prime Minister and Cabinet will be responsible for minute-taking.)

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