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Monday, June 01, 2020

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?
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.