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Sunday, February 23, 2014

Cabinet documents and release to the Royal Commission

Former prime ministers Malcolm Fraser and Bob Hawke are alarmed and the talk is how 113 years of history will be overturned if the Government makes the previous government's cabinet papers available to the royal commission into the abandoned home insulation scheme.

This is flagged in media reports about a letter from Attorney General Brandis to his predecessor, Labor's Mark Dreyfus. The letter said the documents ''will include documents over which a claim for public interest immunity might be made, such as cabinet documents''. In providing the documents the government will indicate that it does not waive its right to claim public interest immunity from their contents becoming public.

At this stage the circumstances - whether the Royal Commission has ordered production, or the government has volunteered - and what will be made available (submissions, decisions, notetakers note books) is not known. What might become public is way down the track.
Cabinet proceedings are not recorded verbatim. The notebooks are "handwritten notes" (yes!) of the proceedings  recorded by the three Cabinet Office staff members in attendance. 
Amid the shock horror and suggestions the government is playing politics in this, it's worth noting that a royal commission has powers to compel production that are at least the equivalent of any judge and probably go further.

 And as Odgers' Australian Senate Practice 12th Edition conveniently summarises, cabinet documents are not extended absolute protection from discovery:
The claim often loosely made that “cabinet documents” are immune from production in the courts is not supported by recent judgments. Only documents which record or reveal the deliberations of cabinet are immune (Commonwealth v Construction, Forestry, Mining and Energy Union 2000 171 ALR 379; NTEIU v the Commonwealth 2001 111 FCR 583; see also Secretary, Department of Infrastructure v Asher 2007 VSCA 272).
Odgers' quotes from the High Court in Sankey v Whitlam and others 1978 142 CLR 1) and refers to other decisions:
In 1984 the High Court ordered the production of Australian Security and Intelligence Organisation (ASIO) documents for its inspection in a criminal trial, Alister v the Queen 154 CLR 404. In The Commonwealth v Northern Land Council 1993 176 CLR 604, the High Court held that the Commonwealth should not have been ordered to produce notebooks containing records of cabinet deliberations to legal representatives of the Northern Land Council. The Court held that: "The production to the court of documents recording cabinet deliberations should only be ordered in exceptional circumstances which give rise to a significant likelihood that the public interest in the proper administration of justice outweighs the very high public interest in the confidentiality of such documents."
In that case the Court went on to say:
 "When immunity is claimed for Cabinet documents as a class and not in reliance upon the particular contents, it is generally upon the basis that disclosure would discourage candour on the part of public officials in their communications with those responsible for making policy decisions and would for that reason be against the public interest. The discouragement of candour on the part of public officials has been questioned as a sufficient, or even valid, basis upon which to claim immunity. On the other hand, Lord Wilberforce has expressed the view that, in recent years, this consideration has “received an excessive dose of cold water”.
(That dose of cold water isn't counting for much in some quarters at the moment-see the reference here to FOI refusal of access to incoming government briefs and the recovered status of 'Frank and Candid.')

Public interest immunity claims refusing to comply with parliament orders to produce are the subject of a current Senate committee inquiry. Former Clerk Harry Evans in a note circulated in 2005, and still accorded weight (by parliamentarians at least) was of the view  that a cabinet document did not automatically qualify.(See Odgers.)

With regard to public access, the FOI act exemptions work to protect cabinet documents The 30 year rule  is dropping in stages to 20, and now at 28. The 1950 Cabinet notebooks, released in 2001, were the first notebooks to be released for public access.

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