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. 

A rose by any name-is the National Cabinet part of Federal Cabinet?

Or operate as such?

Putting aside political pressures that may make this difficult there are other issues that make this more complex and complicated than the Prime Minister and officials have suggested to date.

New Federalism

The Prime Minister's announcement of the abolition of the Council of Australian Governments and its replacement, 'permanently' by the National Cabinet which will form part of "a completely new system", was welcomed as a step in the direction of a co-ordinated approach as our federation faces the challenge of moving beyond the current crisis.
 
It reminds of the many calls and attempts to address problems in the framework and operation of our system of shared federal-state responsibilities that haven't got anywhere or far, most recently the Abbott government in 2013 announcing a Reform of the Federation white paper process that ran into the sand and was officially dumped in April 2016.

Importance of confidentiality

The Prime Minister said the reason the National Cabinet has worked "is it has actually operated as a Cabinet. And that means it operates within Cabinet rules and it operates under the Federal Cabinet's rules and that relates to the security of documents, process, procedure.. and from here on committees and task forces-"Ministerial Cabinet subcommittees, if you like"- will operate on that basis as well. It was important that prime ministers, premiers,treasurers have discussions "(w)ithout sort of lifting the veil, I mean.."
 
The PM has foreshadowed more information about the new system is still to come.

PMC explains

But as of 13 May when PMC Secretary Phillip Gaetjens appeared before the Senate Covid 19 committee he was clear and definite about the National Cabinet:

"Senator PATRICK: In relation to the national cabinet, I heard you saying at the start—and I apologise; I came in late—that, in effect, it is part of the federal cabinet?Mr Gaetjens : Yes."

Earlier Mr Gaetjens read from PMC's submission to the Committee:

"By the agreement of all members, the National Cabinet is constituted as a Cabinet Office Policy Committee and operated according to longstanding conventions of Cabinet government, including the guiding principles of collective responsibility and solidarity. In his capacity as Chair, the Prime Minister provides frequent public updates on National Cabinet decisions where appropriate. The Commonwealth and state and territory governments individually remain responsible for the implementation of decisions arising from the National Cabinet."

It also emerged during questions that generally but not always the Commonwealth has been taking the positions it takes to national cabinet through its own cabinet first; on procedures, the national cabinet doesn't have a handbook but as "it is constituted as a cabinet office policy committee, I think the section of the (cabinet) handbook that relates to that committee would apply"; and without responding specifically to a question whether decisions made by the National Cabinet need to go back to the full cabinet for endorsement, a comment that steps are taken as appropriate as outlined in the handbook.

Public interest immunity and FOI

The issue of transparency and confidentiality surrounding the National Cabinet and the "Ministerial Cabinet subcommittees" is sure to crop up in requests and orders for information and production of documents in Parliament which doesn’t have a workable mechanism to resolve contentious claims of public interest immunity, and through FOI processes which do.

A relevant FOI precedent -Howard's kitchen cabinet

Merely saying the National Cabinet and committees operate under the same rules as Cabinet and therefore enjoy the FOI exemption that applies to cabinet documents doesn’t make it so. 

In 2010, the Administrative Appeals Tribunal, while acknowledging it was for the Prime Minister of the day to determine the shape and structure of the Cabinet system and how it was to operate, decided this didn't extend to simply categorising a committee as a cabinet committee if it wasn't.

Deputy President Forgie (in usual detailed fashion) decided in that case that a Howard government "cabinet committee’ of senior ministers lacked the 'essential characteristics’ to make it so.Documents that may have attracted the exemption if relevant to the operation of the cabinet or other cabinet committees were not exempt in this case.

"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 in Telstra Corporation Limited and Department of Broadband, Communications and the Digital Economy [2010] AATA 118 (15 February 2010) was not appealed.)
 

A few thoughts on how the National Cabinet might stack up if subject to similar examination:

1. Who established the National Cabinet-COAG or the Federal Cabinet?
According to PMC, "COAG agreed on 13 March 2020 to establish a National Cabinet." Nothing on the record about a federal cabinet decision.

2. Is the National Cabinet a Cabinet Office Policy Committee as PMC submitted?

It is well established that Cabinet can and does have cabinet committees. One of which is the Cabinet Office Policy Committee.

The Committee lists only one permanent member, the Prime Minister.

As of 1 June there is no mention in the Government Directory of any other 'Cabinet Policy Committee' or the "National Cabinet."

The Directory states the Committee "is responsible for preliminary discussion of items during the early policy development phase that are intended for subsequent consideration by ERC and/or Cabinet. Decisions of the COP must be endorsed by the Cabinet."

The National Cabinet role and functions that the Prime Minister has talked about publicly are outside the terms of reference of the committee.
 
3 Can a policy committee or any committee of cabinet make binding decisions?
 Apparently not.

Extract from the Cabinet Handbook

"5 Generally, Cabinet committee decisions are brought forward to the Cabinet for endorsement, so the Cabinet retains the ultimate power of decision. While some Cabinet committees may make final decisions for security or practical reasons, most Cabinet committee decisions are not acted on until they have been endorsed by the Cabinet, or the Cabinet Secretary agrees that decisions can be implemented without the Cabinet’s endorsement because they are urgent. In such cases, the Cabinet should be briefed on the Cabinet committee decision as soon as practicable. The Cabinet may alter a Cabinet committee decision or ask a Cabinet committee to consider a matter further."

It is unclear if, when and how the National Cabinet complies with the rule that that applies to the Cabinet office policy committee: "Decisions of the COP must be endorsed by the Cabinet."

4. Can the Cabinet Handbook in its current form apply as Mr Gaetjens testified?
Hardly.   
The Handbook (1) defines Cabinet as "the council of senior ministers who are empowered by the Government to take binding decisions on its behalf." The words 'Minister", "Ministers', "ministers' and "Government" are used frequently throughout the handbook's 30 pages.

The context in every case indicates the word means "federal government' minister, that is a person sworn in by the Governor General and who heads a government agency.
Ministers not in the Cabinet (including assistant ministers) and officials ("generally limited to the most senior levels of the Public Service (secretaries, agency heads and senior executive service band 3) and ministerial staff (chiefs of staff)" can be co-opted to attend.
 
There is nothing to suggest that a state or territory Premier or Minister can be a member of a federal government cabinet or committee.

4. Does the National Cabinet operate or could it operate in accordance with the principles and values that apply to cabinet proceedings?
More than challenging and difficult.
Extracts from the Handbook (not going into issues about document handling and other matters considered in the Forgie decision): 

18 Collective responsibility is a long standing and integral part of the Cabinet system. It requires that whatever the range of private views put forward by ministers in the Cabinet, once decisions are arrived at and announced they are supported by all ministers...

19 In practice, a decision of the Cabinet is binding on all members of the Government..

25 The principle of collective responsibility requires the strict confidentiality of all Cabinet proceedings and documentation..

26 All attendees are responsible for ensuring that what is considered by the Cabinet, when and how it does so, and the decision the Cabinet reaches on particular matters remain confidential...

28 Effective Cabinet confidentiality requires the protection of Cabinet deliberations not only at the time an issue was current but also in the future...
  

32 In upholding the Cabinet guiding principles and operational values, ministers must:

a. not talk publicly about matters that they propose to bring to the Cabinet announce a major new policy without previous Cabinet approval
b. not express private views on Government policies nor speak about or otherwise become involved in a ministerial colleague’s portfolio without first consulting that colleague and possibly the Prime Minister
c. understand that absolute confidentiality of Cabinet discussions is essential
d. adopt a strict need to know approach to any briefing they give to their staff and departmental officers on the outcome of Cabinet decisions
e. enforce the strictest discipline in their offices and departments to avoid Cabinet agenda items or decisions being either knowingly or unknowingly disclosed.
....................

Sure to to be a hot topic when Parliament resumes on 10 June.

"National Cabinet" not Cabinet as we have known it

Explainer: what is the national cabinet and is it democratic?

AAP/Mike Bowers

Jennifer Menzies, Griffith University
Crises pose particular challenges for democratic leaders. They are expected to make critical decisions in times of uncertainty and rapidly develop effective plans to lead us out of the crisis. Normally, we are more interested in constraining our leaders through the checks and balances of accountability. But in times of crisis, we look to our leaders to lead. Finding the right balance between accountability and rapid decision-making remains a challenge during an era of reduced trust in political leaders.
In Australia, the establishment of the national cabinet has undertaken this crisis leadership role.
The national cabinet comprises the prime minister and all state and territory premiers and chief ministers. Basically, it is COAG by another name.

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Read more: 'Where no counsel is, the people fall': why parliaments should keep functioning during the coronavirus crisis

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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.
Its power is that which the leaders of all Australian jurisdictions bring to negotiate on behalf of their people, and to implement the decisions reached. This model is called executive federalism.

Advantages of executive federalism in a time of crisis

In a crisis, decision-making automatically shifts upwards with the expectation that leaders will work together to find a way through the crisis. The National Cabinet meets these expectations in several ways.

Timeliness and risk
Response time is critical, and with the national cabinet meeting multiple times a week, issues can be addressed as they emerge. Risk is reduced by bringing together technical and political experts.
The national cabinet is supported by the chief medical officers, who meet as the Australian Health Protection and Principles Committee (AHPPC). They pull together the modelling, research and data that form the basis of decisions made by the national cabinet.

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Read more: View from The Hill: A contest of credible views should be seen as useful in a national crisis

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The national cabinet is the mechanism to bring together information and intelligence sharing, and the capacity to pool and test ideas before locking in coordination and jurisdictional capacity.
Because of the frequency of meetings, decisions are expected and made. The consideration of different jurisdictional viewpoints and expertise puts rigour and contestability into the decision-making and strengthens the outcome.

Clarity and coherence
In a time of national crisis, agreement on a plan of action and then rapid and effective implementation is crucial. The national cabinet brings that focus. By putting aside their “politics as usual” squabbles the leaders demonstrate their desire for agreement and unity and communicate that firmness of purpose to the community at large.

Though the search for unity can be overborne by local circumstances. Some states moved earlier to introduce restrictions and shutdowns outside of the national cabinet. Though criticised for breaking ranks, the premiers were reacting to the different circumstances and anxiety within their jurisdiction. They decided to trade off the perception of a loss of unity against the need to create local responses for local circumstances.

Dual democracy
The national cabinet helps reconcile the dual allegiances citizens have to the national government and their state or territory government. People are looking for a coherent national approach through the crisis, but they do not want to see their individual jurisdiction to be disadvantaged compared to the rest of the country. At the national cabinet, the smaller states have equal representation, whereas in parliament their representation is proportionate to their population size.

Is it anti-democratic?
Executive federalism forums such as the national cabinet can be criticised for being undemocratic and unaccountable, with the role of the parliament marginalised. However, these forums are undertaking different roles. The national cabinet deals with negotiation and compromise between states, which recognise difference and diversity. The parliament is about majority will.
The connection has not been lost with parliament, which is suspended not pro-rogued, and will be brought back to pass legislation from decisions made by the national cabinet.

Once the COVID-19 crisis has passed, the full democratic accountability processes can scrutinise the decisions taken. This includes parliamentary committee investigations and royal commissions. The checks and balances of the democratic constraints on our leaders will reassert themselves.


Jennifer Menzies, Principal Research Fellow, Policy Innovation Hub, Griffith University
This article is republished from The Conversation under a Creative Commons license. Read the original article.

Treasurer Wells a long way from time in the stocks

Majorly

President Obama's resort to executive privilege in support of the refusal by Attorney General Holder to release documents to a congressional committee, a first for his administration, didn't protect Holder from a subsequent contempt motion. Closer to home, we have our own argument over parliament's powers to order production of documents.

Victorian Treasurer Kim Wells refused last year to comply with a Legislative Council motion requiring the tabling of a review report by consultants Deloitte of Myki, the controversial public transport smart card system. The Treasurer responded by advising that the report was prepared for consideration by a cabinet committee, that the council did not have power to require its production, and that the government had decided not to provide it.

Nothing happened in parliament thereafter but the matter is now in court. Greens MLC Greg Barber initiated action in the Supreme Court in March seeking a declaration that the council has power to order production of documents prepared outside cabinet and considered by cabinet. Not surprisingly all sorts of issues arise before the court gets to that point.

In a submission lodged last week the Solicitor General seeks an order that the proceeding be dismissed or stayed, or judgment be given for the Defendant on the grounds that the claim has no real prospect of success or is an abuse of process, based on legal principles concerning the order sought, the nature of privilege in Victoria, and the separation of powers. In essence:

• there is no justiciable dispute to which determination of the existence of parliamentary privilege is a necessary incident;

• the Legislative Council has not yet considered whether to assert any power to compel production, and the Court should not intrude into the workings of parliament unless compelled to do so;

• the relief sought is merely hypothetical or advisory  and should not be entertained in the abstract and apart from a justiciable controversy.

The case is listed for 14 August. The Solicitor General has also given notice that the proceeding involves a matter arising under the Constitution. As s 78B of the Judiciary Act requires notification to the Attorneys-General of the Commonwealth and the States, some  may choose to join in.

So It will also take quite a while, if ever, to get to the underlying issue of access to the report prepared by consultants which the government claims was prepared for consideration by cabinet or a cabinet committee. If it was a freedom of information issue, which it isn't, the relevant exemption (s 28) turns on whether the report was prepared by or for the Minister or by an agency for the purpose of submission for consideration by the Cabinet.

NSW is the only Australian parliament that has a system for dealing with disputes concerning parliamentary orders requiring production of documents. An independent arbiter determines whether a claim for privilege has merit.  Some in federal parliament were keen to address the issue at one point but passed the opportunity in February 2010. 

In 2007 Victoria had a system of sorts (Sessional Order 21-Submission by Legislative Council: Inquiry into Independent Arbitration of Public Interest pdf) but apparently the current parliament has never got around to addressing what to do in circumstances where a minister says no, according to Mr Barber's Affidavit.

The general issue of parliament v the executive over access to documents will get an airing at a forum at the Castan Centre for Human Rights Law, Monash University on 9 August featuring Mr Barber and Clerk of the Senate Dr Rosemary Laing.

Sydney Olympic deals still commercially significant

 Ah remember the days..revisited recently in a Government Information (Public Access) Act case in the NSW Administrative Decisions Tribunal concerning the relatively rare issue of access to cabinet information ten or more years old. The decision involved something not quite as rare, a win (mostly) for the Sydney Swans (8-3, midway through the season).

The conclusive presumption that there is an overriding public interest against disclosure of cabinet information ( GIPA Schedule 1 Clause 2) does not apply if (a)  public disclosure of the document has been approved by the Premier or Cabinet, or (b)  10 years have passed since the end of the calendar year in which the document came into existence.

Nevertheless, depending on content, context and the effect of disclosure, there is scope on other grounds to claim an overriding public interest against disclosure. 

Deputy President Higgins in Hall v Department of Premier and Cabinet [2012] NSWADT 46 decided some withheld parts of a 1999 cabinet minute prepared in the lead up to the 2000 Olympics should be released, affirmed the decision (with a confidentiality order attached to the reasons) to refuse access to other parts that had continuing commercial significance to the Swans and the Stadium Australia Management Limited (SAG), and referred other disputed parts of  the document back to Premier's for reconsideration. (The document as released is yet to appear on the department's disclosure log.)

Few points of law arose in the case. The order that some information withheld by the department should be disclosed resulted primarily from the failure to satisfy the tribunal that disclosure would have the adverse effects claimed. For information of this kind it was unnecessary to consider whether the public interest considerations against disclosure, on balance, outweigh the public interest considerations for disclosure. However with regard to some, Deputy President Higgins commented "there are a number of public interest considerations in favour of disclosure of the information in the disputed paragraphs. The stadium is an important public asset and disclosure of the disputed information (now 13 years old) could reasonably be expected to enhance Government accountability and ensure effective oversight of the expenditure of public funds" [52]. Other information of this kind "appears to be purely factual and uncontroversial" [72]

FOI protection for Victorian Blue books set up well ahead of 2010 election

Melissa Fyfe of The Age was unsuccessful in a challenge in the Victorian Civil and Administrative Tribunal to the refusal by the Department of Sustainability & Environment (DSE) to grant access under the Freedom of Information Act to the Departmental Status Report (DSR) and the Policy Implementation Action Plan (PIAP) prepared for the incoming government in 2010. Along similar lines to what was done in NSW and South Australia to protect these types of documents, the grounds for refusal were set in place earlier that year when the Department of Premier and Cabinet issued guidelines to agencies that stated the purpose for which they were to be created included to brief the Premier on an issue to be considered by cabinet.

At Commonwealth government level where significant disclosure of the incoming government briefs by agencies voluntarily occurred in 2010 after the Federal election, those documents were prepared for the incoming minister. Agencies would not have had the cabinet exemption available in those circumstances. As possible exemption grounds other than cabinet documents such as deliberative process involve a public interest test with strong pro-disclosure elements, most agencies chose to voluntary disclose a redacted version of the brief. And contributed in many instances to informing public discussion and debate.

In Victoria from the time well before the election when the guidelines were issued by DPC, the documents regardless of the content or how they were eventually used were protected from disclosure under FOI. Of course the Premier and ministers retained and still retain the discretion to disclose such documents outside the confines of the FOI act. While they may (for obvious reasons) want to withhold PIAPs unless compelled to disclose, why DSRs need to be locked away from public scrutiny for years is less clear.

Some FOI act mandatory provisions optional in Victoria

Mystery solved, sort of.

In a post last year about cabinet documents I referred to a provision in the Victorian FOI act that  when introduced almost thirty years ago was a long way ahead of it's time. Not that it would, if followed, disclose much about the cabinet process except that a decision had been made:

Those with long memories might also recall s 10 of the Victorian Freedom of Information Act  that came into effect in 1983, and still in force, requiring the Premier to "cause to be published on a continuing basis a register containing- (a) details of the terms of all decisions made by the Cabinet after the date of commencement of this Act; (b) the reference number assigned to each such decision; and (c) the date on which the decision was made. (2) The information referred to in subsection (1) shall be entered on the register at the discretion of the Premier." 

It was heralded at the time as groundbreaking. Notice it doesn't say when or how. (the register is to be published) .There is this reference to cabinet decisions to 1993 at the Public Record Office. A search of the Department of Premier and Cabinet website for something contemporary produces zero results. A Victorian reader may know when it dropped off the radar and, ahem, why..

The question remained unanswered until in the wee hours in the Legislative Council debate on the FOI commissioner bill in committee on Tuesday last week, the following exchange occurred (LC Hansard 28 February pages 63-64). It seems that successive premiers simply decided not to comply with the requirement and no-one has talked about it much since:

Mr BARBER (Northern Metropolitan) — I also raised in the second-reading debate the question of the cabinet register. This is a document that is apparently required to be prepared under section 10 of the principal act. Where is that information publicly available? Where this register, which is required under the act, is even located — if it is prepared — is apparently a secret. That relates directly to a number of the ways in which I might use this very legislation we are debating.
Hon. R. A. DALLA-RIVA (Minister for Employment and Industrial Relations) — I thank the member for forewarning us in the debate. In relation to section 10 of the principal act — and I note the comments made by Mr Barber — it has not been the practice of successive governments to publish cabinet registers. This section of the FOI act is unrelated to the amendments dealt with in this bill, and therefore it would be inappropriate for the government to debate the details of this provision at this time.

There ended discussion. The minister didn't seek to enlighten Mr Barber or anyone else on the discretionary nature of the obligation under s 10 which reads:
"The Premier shall cause to be published on a continuing basis ...."

Since 1983 Queensland and the ACT have decided to do something along these lines. In Victoria the obligation to do so, now 28 years on, simply sits on the statute book with successive premiers simply saying to themselves at least that they didn't like that bit.

Update: this anonymous comment subsequently received from someone with some involvement, and although not surprising, worth prominence beyond the Comments section:

I worked in the Victorian Cabinet Office in the 1980s and the Cabinet register was taken very seriously at that time. It was updated at least annually, and a lot of effort went into getting accurate information onto the (then hard copy) register.  My colleagues and I agonised a bit about 'details of the terms of all Cabinet decisions', especially in cases where the issue continued to be the subject of further Cabinet submissions.  The draft additions to the Cabinet register were very carefully checked by the Parliamentary Secretary of Cabinet before being put to the Premier (then John Cain) for his approval.  I left the Cabinet Office in the late 1980s and am not aware of when the Cabinet register stopped being compiled, but I can easily imagine it was one of the first activities to be dropped if there were staffing or budget issues.  It was one of those activities which appeared high risk with little reward except serving the 'public interest.'

Head-scratchers in secrecy claims for documents 30 years old

From NAA website

The National Archives Authority released Cabinet papers for two years on 1 January, as part of the transition from the 30 to 20 years secrecy rule, comprising 800 of the papers considered and discussed by the Fraser and Hawke Cabinets in 1982 and 1983. The media coverage of what was released focuses, rightly, on some of the juicy bits. What wasn't released sparks interest here.

  While a relatively small amount of information in the overall scheme of things (and about the same proportion as last year), you have to wonder whether excessive secrecy rather than legitimate well based concern about the effect of disclosure is at work here.

The titles of three documents withheld in their entirety isn't disclosed and parts of 25 others have been redacted. The "reasons" given are simply assertions of a claim for exemption under the Archives Act 1983. The NAA shorthand descriptions of two exemptions (section 33(1)(b), 33(1)(c)) leave out important elements of the exemption provision itself.

Some redactions that prompt more than the usual amount of head-scratching, bearing in mind the documents are 29-30 years old, include

• To protect Australia’s security, defence or international relations. Six documents relate to Antactica including "Australian policy objectives in Antarctica." Then there is  "Overview of Defence counter-terrorist capability", "Australian policy towards China" and "Future Australian interest in Christmas Island".

• Withheld because release would have a substantial adverse effect on the financial or property interests of the Australian government or a government institution. "New policy proposals 1982-1983 - Treasury" (!!) (The exemption contains a public interest test- disclosure would not, on balance, be in the public interest.)

• To protect information because its release would adversely impact on the business, commercial or financial affairs of a person, organisation or undertaking." Report of Mr A F Smith on the Office of the Deputy Crown Solicitor (DCS), Perth."  (!!!!!)

ACT Open Government website debuts with cabinet summaries

The ACT Government's Open Government website is up and running including a single disclosure log for documents released by government agencies in response to Freedom of Information applications, to be posted within ( a generous) 15 business days of release, plus media releases and data sets. And a summary of cabinet outcomes with material posted initially for the period June to September.

The Chief Minister's Welcome statement, " I am pleased that we will be the first Australian government to make a summary of our Cabinet outcomes available..." is welcome, but either makes a neat distinction or ignores the fact that the Queensland Government has been publishing Cabinet material including decisions since July 2008.

Those with long memories might also recall s 10 of the Victorian Freedom of Information Act  that came into effect in 1983, and still in force, requiring the Premier to "cause to be published on a continuing basis a register containing- (a) details of the terms of all decisions made by the Cabinet after the date of commencement of this Act; (b) the reference number assigned to each such decision; and (c) the date on which the decision was made. (2) The information referred to in subsection (1) shall be entered on the register at the discretion of the Premier." 

It was heralded at the time as groundbreaking. Notice it doesn't say when or how. There is this reference to cabinet decisions to 1993 at the Public Record Office. A search of the Department of Premier and Cabinet website for something contemporary produces zero results. A Victorian reader may know when it dropped off the radar and, ahem, why.

Other governments are yet to take such a grand step.

NSW Government shuts the door on incoming government briefs

Documents prepared for submission to cabinet are subject to a watertight exemption under the NSW GIPA act, so you might say the NSW Government's hands were tied from the time public servants were told before the election that this was the purpose of the incoming government briefs they were asked to prepare before the state election in March. So the decision to impose a blanket ban on access to all such documents in response to applications under the GIPA act, as reported by Matthew Moore in today's Sydney Morning Herald was preordained. But as there is no restriction on release of such information by the Premier and ministers outside the GIPA act, a government interested in lifting the game on accountability and transparency would grab the opportunity. Large slabs are likely to consist of factual information about the situation the incoming government faced.

I stopped counting after 13 Commonwealth government departments including Treasury and Defence released parts of the briefs prepared for the incoming government in Canberra last year-released under FOI because that act, unlike GIPA contains a discretion to release otherwise exempt matter (or more correctly because they weren't cabinet documents or otherwise exempt). Much of this material contributed significantly to informed public discussion and debate.

Not in NSW where the government has placed material that better informs ministers about the state of things on roads, schools and the health system for example, on the same "state secret" footing as the incoming government brief prepared in Canberra by Foreign Affairs and Trade, one Commonwealth department that flatly refused to release anything of this kind.

As I told Moore," it's poor form for a government that came to office indicating improvements in transparency and accountability were a high priority.."

NSW Incoming government briefs "cabinet documents"

Oh dear, who dreamed this up?

Matthew Moore in the Sydney Morning Herald:

Barry O'Farrell must decide whether to release the ''blue books'' prepared by government officials to brief his administration on key issues after the former government told departments to prepare these documents for an ''incoming cabinet''. Telling departmental heads these briefs are prepared for cabinet has ensured agencies are refusing requests for access to them on the grounds they are cabinet documents and not accessible under the new state freedom of information law called GIPAA - Government Information (Public Access) Act.

Protection from disclosure of a document prepared for consideration by Cabinet is watertight, not a matter for the exercise of discretion, under the GIPA act Schedule 1 Clause 2.

(1)  It is to be conclusively presumed that there is an overriding public interest against disclosure of information contained in...:

(b)  a document prepared for the dominant purpose of its being submitted to Cabinet for Cabinet’s consideration (whether or not the document is actually submitted to Cabinet),

There might be a few factual issues when it comes to dealing with GIPA applications- the nature of the instruction, was submission to cabinet the dominant purpose etc.

But ministers retain a general discretion to release information outside the act, so over to the Premier and his ministerial colleagues to start telling the news....