The Tribunal gives Government a drubbing: "National Cabinet is no cabinet committee "

The decision in the Administrative Appeals Tribunal by Justice White rejecting arguments that documents concerning the operation of the "National Cabinet' are exempt as cabinet documents cheered up those among us who keep lamenting the decline in  transparency.Thanks to Senator Rex Patrick, something to cheer about, the first in a long time for years.

The matter took a year to get to this stage (speedy compared to delays some of us are enduring in a queue at the Office of Australian Information Commissioner) and it may not be over yet. The Secretary of the Department of Prime Minister and Cabinet is considering an appeal to the Federal Court.

There's no reason to think the Australian Government Solicitor who ran the case for exemption didn't put their best case forward, or were rushed and caught off guard in marshaling evidence in support, but it fell way short. I canvassed some of the problems the Government faced last year. By the look of it AGS didn't have much to play with in addressing them before the AAT.

Decision

On the cabinet exemption issue Justice White concluded

Having addressed several matters bearing on the question of whether the National Cabinet is a committee of the Cabinet, I have then sought to consider their collective effect. In my view, taken together they point persuasively against the National Cabinet being a committee of the Cabinet within the meaning of the statutory expression. At the very least, I am satisfied that the respondent has not discharged the onus of establishing that Mr Hupalo’s decisions about these matters were justified or that the Tribunal should give a decision which is adverse to the applicant. [210}

Professor Anne Twomey has a good piece on The Conversation about the decision and its consequences. 

The evidence and contentions

In his decision Justice White was measured but scathing in observations about the evidence put forward and the contentions on behalf of the Secretary of the Department of Prime Minister and Cabinet in arguing the case for a finding the documents were exempt.

It's a real drubbing, both on the cabinet document claim and a claim made for the first time when the matter reached the AAT that disclosure of minutes of a meeting in March 2020 would damage relations with the states.

Not for the faint hearted, but here's (a selection of) what Justice White said about the case put for the cabinet document claim (emphasis added):

the proposition "that any committee may be a “committee of the Cabinet” for the purposes of the FOI Act merely because the Prime Minister of the day has purported to establish it as such.. is unsound...in any event... the evidence does not support a conclusion that the Prime Minister “established” the National Cabinet.[68] 

It is unfortunate that the evidence which the parties and, in particular the respondent, have provided as to the establishment of the National Cabinet is secondary in nature, when primary evidence must be available [84]. 

The evidence in this case did not meet the standard suggested by (the) authorities [86]

On the evidence provided, I am not willing to accept Ms McGregor’s evidence insofar as it suggests that the National Cabinet was established after the COAG meeting. That assertion is not supported by any other evidence and is inconsistent with the inferences naturally arising from the agreed facts. Nor am I willing to accept the respondent’s evidence, given its identified shortcomings and given its inconsistency with the weight of the other evidence.[87]

... the selection of the members of the National Cabinet is not at the discretion of the Prime Minister. Nor is there any evidence that the Prime Minister “appoints” persons as members of the National Cabinet{92]

 The implication in the evidence and the submission seemed to be that the term “committee of the Cabinet” should be construed in the light of this historical experience. However, apart from any other consideration, the respondent’s submission breaks down at the evidential level.[98]

It follows that I reject the evidence of Ms McGregor and the respondent about these matters. As indicated earlier, the context in which the FOI Act was enacted seems to have been that Cabinet committees would be comprised of members of the Cabinet or at least of the outer Ministry.[103]

However, as indicated, the evidence does not provide a single example of a cabinet committee whose membership comprised persons who were not Ministers in the Government of the day, let alone not members of the Australian Parliament. More pertinently to the present case, it does not provide evidence of a single instance of a committee of the Cabinet comprised substantially of persons who are not even members of the Australian Parliament. The characterisation of such a committee as a committee of the Cabinet would be inconsistent with entrenched conventions of responsible government, including that the Cabinet is comprised of Ministers who are responsible and answerable to the Parliament.[107]

I regard the issue raised by this submission as a diversion which it is not necessary to address in detail. I indicate, however, that I do not regard the submission as meritorious. It is a logical fallacy to suppose that the occurrence for the first time of an event in political or governmental life is an indication that there has hitherto been a convention (in the sense of an acknowledged norm) that it should not, or may not, happen.[108].

Counsel’s submission involved therefore a form of “boot straps” or circular reasoning. There is, in any event, no evidence that the Prime Minister could decide unilaterally that one or more Premiers or Chief Ministers would no longer be a member of the National Cabinet. In fact, Ms McGregor’s evidence (again secondary in nature) seems to be to the contrary as she deposed in [33] that “the precise structure, shape and operation of the National Cabinet are matters for its members [115].

In the case of the Cabinet, the Handbook specifies that it is the Prime Minister of the day who determines its “shape, structure and operation”, whereas Ms McGregor deposed that the “precise structure, shape and operation of the National Cabinet” are matters for its members. She seemed thereby to draw a significant distinction between it and the Cabinet.[117]

It seems reasonable to infer that the other Premiers and Chief Ministers may also delegate another Minister to represent their State or Territory, as the case may be, in the National Cabinet. There is no primary evidence indicating that they may do so only with the permission of the Prime Minister or that the nomination of a delegate by a Premier or a Chief Minister to the National Cabinet is subject to some form of ratification, approval or veto by the Prime Minister. Given the character and purpose of the National Cabinet, the existence of such a requirement seems improbable. In fact, it is probable that the Premiers and Chief Ministers would be surprised to hear that their membership of the National Cabinet is entirely at the discretion of the Prime Minister and that, to use the expression of counsel for the respondent, it is the Prime Minister’s “gift”[119].

The logic of the syllogism implicit in this submission does not need to be addressed. As will be seen, the evidence does not in any event support a conclusion that the role of the National Cabinet is to assist the Federal Cabinet, let alone that that is its entire function and purpose. In fact, the evidence that it exists to assist the Federal Cabinet to make appropriate decisions is scant.[122]

However, it is appropriate to note first that, with few exceptions, none of the public statements of the Prime Minister in evidence concerning the National Cabinet contain any explicit reference to it having some inter-relationship with the Federal Cabinet or that its function is to assist that Cabinet to make appropriate decisions [130]

The Tribunal has not been provided with any primary evidence indicating how it was that the National Cabinet had been “established formally” under the Commonwealth Government’s cabinet guidelines, evidencing such establishment or indicating the basis upon which the Prime Minister asserted that it has “the status of a meeting of the Cabinet that would exist at Federal level”. On one view, the statement of the Prime Minister may be no more than a statement of his belief, and not a statement of fact. Alternatively, the statement may indicate no more than that it had been agreed that the National Cabinet was to operate in accordance with the Cabinet guidelines. In this respect, it may be pertinent that the Prime Minister did not say that the National Cabinet was a committee of the Cabinet, or that it operated under the Cabinet, or even that it stood in any particular relationship with the Cabinet [132]

As is apparent, in these statements the Prime Minister seemed to emphasise that the decisions of the National Cabinet (which were announced publically) were not decisions of the Federal Cabinet, and were made independently of it, with the implication that the Federal Cabinet did not have responsibility for them. Further the Prime Minister conveyed that it was for the States and Territories to implement the decisions and not the Commonwealth. Thus, the Prime Minister distinguished between the National Cabinet and the Federal Cabinet in a way which did not suggest that the National Cabinet was a committee of the Cabinet [135].

In his affidavit, the (Secretary Gaetjens) deposed that the National Cabinet had agreed at the meeting on 29 May 2020 that it would replace COAG as the peak intergovernmental body. Without reference to the minutes themselves, I would regard it as improbable that the National Cabinet as “the peak intergovernmental body”, and with the status of such a body, intended that it be a committee of the Cabinet of one governmental entity and, implicitly, subordinate to it. In the interests of not disclosing for the time being anything concerning the content of the minutes of the meeting of 29 May 2020 with respect to the agreement which the respondent attributed to the National Cabinet. I will not detail my conclusion that the respondent’s evidence is not supported by the documents.[141]

The following conclusions are appropriate on the evidence concerning the relationship of the National Cabinet and the Cabinet: [149]

(a) unlike the Cabinet (and, it may be inferred, Cabinet committees), the Prime Minister does not determine the shape, structure and operation of the National Cabinet – cf [2] of the Handbook. There is no evidence at all of the Cabinet, or even the Prime Minister, delegating to, or entrusting the National Cabinet with, any particular function, or even requesting that it provide assistance to the Cabinet;

(b) the National Cabinet does not derive powers from the Cabinet – cf [5] of the Handbook. At the least, there is no evidence that it does so;

(c) decisions of the National Cabinet are not taken to the Cabinet for endorsement – cf [5] of the Handbook. Again, there is no evidence that this occurs;

(d) the Cabinet does not retain the ultimate power of decision over matters decided at the National Cabinet – cf [5] of the Handbook. The Prime Minister’s public statements concerning the nature of the decisions of the National Cabinet is inconsistent with the Cabinet having this power;

(e) decisions of the National Cabinet may be, and are, acted upon by the States and Territories without being endorsed by Cabinet – cf [5] of the Handbook;

(f) there is no evidence that the Cabinet is briefed on the decisions of the National Cabinet – cf [5] of the Handbook. There is not even evidence that copies of the minutes of the National Cabinet are provided to the Cabinet;

(g) the Prime Minister is not responsible for the membership of the National Cabinet – cf [6] of the Handbook;

(h) there is no evidence that the Cabinet may alter a decision of the National Cabinet or ask it to consider a matter further – cf [5] of the Handbook;

(i) decisions of the National Cabinet are not equivalent to, and do not have effect as, decisions of the Cabinet;

(j) the National Cabinet has addressed matters over which the Commonwealth Government had no, or only indirect, legislative authority or responsibility; and

(k) a principal focus of the National Cabinet has been that of promoting the maximum possible coordination and consistency of approach in addressing COVID‑19 in particular.

The evidence concerning the National Cabinet being established as a Cabinet Office Policy Committee is unfortunately scant[ 150].

While I accept that confidentiality does attach to the National Cabinet deliberations, I do not regard it as a particularly strong indicator that it is a Cabinet committee. [173].

 The Tribunal invited counsel for the respondent to identify the evidence indicating that the National Cabinet had operated on the basis of a requirement for 100 percent consensus for its decisions before 4 September 2020 but counsel did not do so [184]

The evidence indicates, however, that, while National Cabinet has sought to achieve consistency in the measures to control COVID-19 and its effects and coordination of the various activities of the States and Territories directed to that end, the States and Territories did not at the relevant times in fact operate wholly in accordance with the principles of collective responsibility and cabinet solidarity. In particular, it is evident that members of the National Cabinet did not regard themselves as bound to support decisions made at the National Cabinet irrespective of their own views, and that at times they acted in ways which were inconsistent with the National Cabinet decisions. Further, there is no evidence of attempts to enforce solidarity amongst members of the National Cabinet[190]

In my view, the attempt by the respondent to have the Tribunal rely, in relation to the question of whether the National Cabinet is a committee of the Cabinet, on statements in the authorities concerning the value of statements of “responsible representatives” in the evaluation of claims for public interest immunity is misplaced. Specifically, I am not satisfied, with due respect to the respondent and Ms McGregor, that either has a relevant expertise or experience which can assist the Tribunal in the determination of this question[208]

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Ouch.

We probably won't know for 20 years or so about any advice, legal or otherwise, around the time of the establishment of 'National Cabinet' and recommendations at that time about what if anything should be done to buttress the claim that its establishment and procedures would guarantee confidentiality for inputs, deliberations and decisions.

You are left to wonder where the idea came from.

Possibly that the Prime Minister with his penchant for secrecy and usual self confidence simply pulled this out of the hat-inevitably to face reality down the track.

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