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Wednesday, October 28, 2020

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.


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. 

Senate Estimates 21 October 2020

Senator KIM CARR: In regard to the new Cabinet Handbook, did the Attorney-General's Department provide advice to the government regarding the legal conventions with regard to the operations of the federal cabinet, especially those that relate to the extension of those meetings to first ministers

Mr Kingston : I'm unable to speak for other parts of the department, but in relation to AGS, any advice we might have provided to Prime Minister and Cabinet, or indeed whether we provided advice, is something we, as the lawyers, would be under a duty of confidentiality in relation to and I would seek to take that question on notice if I may, so that we could consult with the client before answering it.

Mr Moraitis : Could I also add that no other part of the department has been involved in this matter.

Senator KIM CARR: The reason I'm seeking advice here is that I'm wondering whether there is, in fact, any legal status at all to the notion of the national cabinet? Can you outline for me what the legal basis of it is?

Mr Kingston : With the greatest of respect, I suspect that is a question that, if it goes to the operations of the national cabinet, is better directed to the Department for Prime Minister and Cabinet who, as I understand it, have responsibility for it within the Commonwealth. We think the official guidance for government witnesses says that government lawyers, such as AGS, are normally not at committee hearings in order to provide advice to the committee. To the extent that you're asking us, 'What advice have you maybe given government in relation to what you're talking about,' that would involve us revealing the content of any advice we may have given to government which, as you know, is something we'd normally seek to consult with our client about before answering a question like that.

Senator KIM CARR: Can you show me where in the Constitution there is reference to an interstate body or an intergovernmental forum comprising members of different parliaments, particularly first ministers, which could confer a legal authority to make legal decisions? Show me within the Constitution where that exists.

Mr Kingston : I don't think I can point you to a provision in those terms.

Senator KIM CARR: I put it to you that it doesn't exist; the reason you can't point to it is because it doesn't exist.

Mr Kingston : Yes, I'm not seeking to disagree with you.

Senator KIM CARR: I appreciate the point that you're not disagreeing with me, but that's the reason why I'm raising the matter. There's an opportunity here to say to me, 'Well, look, Carr, I know a little bit more about the Constitution than you do, and my reading of the Constitution does not highlight a proposition which is contained in the Cabinet Handbook suggesting that this is a legal body.' Can you contradict me?

Mr Kingston : To the extent that you're seeking on behalf of officials or the Public Service or the government some authoritative statement about what the status is of the national cabinet et cetera then, as I said, with respect, I think that it doesn't come from lawyers who are engaged by different parts of government from time to time. It comes from the part of government with policy responsibility for that. So I think it's simply not my role and I'm not in a position to do that.

Senator KIM CARR: It might also come from the parliament. I might—

Mr Kingston : Yes, I'm not trying to exclude parliament at all. What I was going to say is that to the extent, if at all, we've been asked to provide legal advice to assist people about this, then whether we've done that and its content would be confidential. We would need—and, as I said, I'd be very happy to—to take a question on notice and to consult with any client about the relevant—

Senator KIM CARR: I accept that you're going to take that aspect of it on notice. But this goes to the issue of your expertise. Can you show me in the Constitution, or in any other law, that which confers on the Prime Minister the power to create a new legal convention by decree?

Mr Kingston : As I said, I cannot point you to anything in the Constitution. Whether it's possible to point you to anything in any other law, I'm simply not able to provide an answer to that right now.

Senator KIM CARR: Alright. I'm surprised that you can't immediately contradict me, because I'm putting the proposition to you that there is no other law that allows the Prime Minister to create by decree a new legal convention. I may not be a lawyer but I am a student of history, as I've said before, and I'm just trying to find the convention or the law, or any plain reading of the Australian Constitution, which allows the Prime Minister to create such a legal convention. Can the department assist me with any instrument that contradicts that proposition?

Mr Moraitis : I'll have to take on notice as to whether there are any other instruments of that nature.

Senator KIM CARR: Let's take that a bit further. Can you show me anywhere in the Constitution—or any other law—which confers on the Prime Minister the power to, by decree, declare a meeting between him and state and territory first ministers a subcommittee of the federal cabinet?

Mr Moraitis : I'll take that on notice. I'll ask Mr Kingston to respond. I can't even recall a reference to federal cabinet in the Constitution.

Senator KIM CARR: I thought you might come to that sooner or later.

Mr Moraitis : But I'm not the expert on this; this was about 30 years ago—

Senator KIM CARR: There is a longstanding political argument as to the nature of the Australian Constitution and its inadequacies, so that's why I asked you. If you think if the Australian Constitution doesn't cover this, what law that allows the Prime Minister to declare a state meeting a subcommittee of the federal cabinet covers this?

Mr Moraitis : I'll defer to Mr Kingston. He has referred to the policy responsibility for PM&C, but I'll ask him to elaborate any further, if he thinks appropriate.

Mr Kingston : I think, to the extent it assists—and it may not—this was, to some degree, addressed yesterday by the deputy secretary of Prime Minister and Cabinet at their estimates committee when they spoke about being established by agreement of first ministers as a subcommittee of the federal cabinet. But beyond that, I can't really go beyond what I've already said to Senator Carr, which is that our role is not to, with respect, come to an estimates committee to give advice at large to the committee about particular things. If it's about, 'What advice may we have given government on these issues?' it goes back to these issues which are covered by our duty of confidentiality.

Senator KIM CARR: But these declarations go much further than we've seen before. It's put to us that this is contingent on a national emergency. Is there any provision—for instance, the biosecurity legislation—that provides for this? If so, was that invoked to allow this to occur?

Mr Kingston : I'm not aware of it being invoked in this context, but I do not have a universal knowledge of that. I'm not aware of that, no.

Senator KIM CARR: This suggests, for instance, that the national cabinet sets out procedures in terms of the operations for cabinet papers and the like. Does the Archives Act still apply to these provisions?

Mr Kingston : Again, if it's a question about how the Archives treat papers from the national cabinet then, as you would have seen, there is some discussion in the Cabinet Handbook about dealing with national cabinet papers.

Senator KIM CARR: Yes.

Mr Kingston : But, if there were questions about that, again, with respect, I'd say that would be a question for the Archives, not the lawyers for government.

Senator KIM CARR: This is the Attorney-General's Department. You're aware that I have some association with the National Archives. I can just imagine me going down there and asking them what their view is on the application of the National Archives to the national cabinet. They would refer me directly to you.

Unidentified speaker: Would they?

Senator KIM CARR: I'm clear they would.

Unidentified speaker: I'm not sure.

Senator KIM CARR: Perhaps we can ask them tomorrow morning if you think that's in doubt. Does it apply or not? Does the Archives Act apply to the national cabinet?

Mr Kingston : That's not something I have given any thought to. Again, as to whether AGS as a whole has given advice on that would be covered by our obligations of confidentiality, we'd need to consult with any client before answering that question.

Senator KIM CARR: Barrister Jeremy Farrell has stated that the national cabinet is 'an expedient and improvised system of governance that operates in a vacuum of statutory authority or intergovernmental agreement'. Is he correct?

Mr Kingston : I've read some comments like that, but I don't have any comment to offer on the views of a range of different lawyers.

Senator KIM CARR: You're singularly unhelpful on these matters, I think. All of these questions you've taken on notice, effectively, haven't you?

Mr Kingston : Yes, Senator.

Senator KIM CARR: Constitutional law professor Cheryl Saunders says, '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.' Is she correct?

Mr Kingston : I have great respect for Professor Saunders, she having taught me a long time ago. But, as I said—and I've read comments of a similar nature—with respect, I don't think it's my role as a public servant and lawyer within the government to be commenting on those sorts of comments.

Senator KIM CARR: What's the duration of the new Cabinet Handbook? Do you know that?

Mr Kingston : I might be wrong, but I'm not aware of it having a fixed duration.

Mr Moraitis : It's probably a question for Prime Minister and Cabinet.

Senator KIM CARR: Who is responsible for the management of national cabinet documents, in terms of their security arrangements?

Mr Kingston : That would be a question for Prime Minister and Cabinet. We're really not responsible for the policy attending the organisation and the meetings of national cabinet or documents produced in connection with those meetings.

Senator KIM CARR: I'm at a loss to explain how this process of the national cabinet fits within our understanding of cabinet government in Australia. Are you able to provide us with any advice as to how it fits within the conventions of cabinet government in Australia?

Mr Kingston : I'm not able to add to what I've already said in relation to similar questions.

Senator KIM CARR: Alright. I'll have to leave it there, given your extraordinary unavailability of knowledge on this question. Did you want to say something on this matter?

CHAIR: It sounds like Senator Patrick would like the call briefly.

Senator PATRICK: I didn't hear all of the dialogue, but it's correct that cabinet is a creature of convention. The only place that I see it mentioned in the statutes is in the FOI Act and the Archives Act. Is that your understanding?

Mr Kingston : I couldn't say. It may be mentioned in some other legislation. I couldn't say definitively it's not mentioned anywhere else.

Senator PATRICK: It's not mentioned in the Constitution. I think the Federal Executive Council is, but not the cabinet.

Mr Kingston : Yes.

Senator PATRICK: In terms of the changes that have been made, did the Prime Minister seek legal advice in respect of altering the convention, because that's how the cabinet was established over hundreds of years, including back in the UK? Was any advice sought, either from the AGS or from the Solicitor-General?

Mr Kingston : I can't speak for the Solicitor-General. In relation to AGS, the subject matter of advice we may have been asked for would be a matter in which we're under an obligation of confidentiality in relation to our client, so I would seek to take that question on notice so that we could consult with our client about answering it.

Senator PATRICK: I'm just after the existence of advice, not perhaps the general question that may have been put to the AGS or the Solicitor-General but simply the general comment as to whether or not advice was sought.

Mr Kingston : Yes. I understand, but, as a general proposition, lawyers are under a duty of confidentiality not to disclose the topics on which clients have asked them for advice as well as being under a duty not to disclose what the content of that advice is. So it's in that context I'm saying that we would normally seek to take a question like that, even though it's just directed to the topic rather than the content, on notice to consult with our client about that duty of confidentiality and then whether they were content for to us answer it or wish to make some claim in relation to public interest immunity.

Senator PATRICK: Okay. Just extending from that—I guess you're going to take this on notice as well—if such advice was sought, could you provide some details as to the dates at which it was sought? So that you know where I'm going, was the advice sought before the Prime Minister's announcement as to the national cabinet or has it been sought subsequently, for example, in the formation of the Cabinet Handbook and/or other internal arrangements that may have been considered by PM&C.

Mr Kingston : I understand the question and I will take that on notice.

Senator PATRICK: Thank you.


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