The COAG Legislation Amendment Bill likened to the Dog is a Cat Act

I was one of the witnesses at yesterday's Senate Committee hearing on the government's wrong headed, bizarre attempt to legislate that anything considered or decided by the 'National Cabinet' (the PM, state premiers, and territory first ministers) is not for any us to know unless the PM at his discretion decides to let it loose in the public domain.

The contention in putting forward the COAG Legislation Amendment Bill 2021 (Schedule 3) is that 'National Cabinet' is a committee of the Federal Cabinet and entitled to all the secrecy that goes with that. In addition to an amendment to the Freedom of Information Act in an attempt to achieve that purpose, having lost when Justice White was not persuaded by the government's evidence, the bill would amend fourteen other acts. 

 

If it becomes law 'National Cabinet' documents-inputs, deliberations, decisions- would  attract the (absolute, no public interest test) Cabinet Document exemption in the FOI act, be locked up and maybe released in 20-30 years time.

 

The government says the same should go for documents considered or concerning deliberations and decisions for any group consisting of any Tom Dick or Mary the PM designates as a subcommittee of the 'committee' known as 'National Cabinet'.

 

As one witness yesterday said it's like proposing a law that a dog is a cat.

 

The bill-yet to be voted on-got a real pasting from everyone who testified, except the three public servants from the Prime Minister's department who tried in answer to questions to explain and justify this further backward step in transparency. 

 

From within the ranks, the Australian Human Rights Commission spoke up against and the Australian Information Commissioner in a submission supported by all eight state and territory counterparts said it was unnecessary.

 

Although government senators are in the majority on the Committee considering the legislation, only one the Chair, turned up, leaving open slather to Senators Ayres (NSW ALP), Rex Patrick (Independent SA) and Larissa Waters (Greens Qld). They had a field day getting plenty of confirmation the legislation proposed is a dangerous dud, and leaving those three public servants perplexed and pained in trying to justify it.

 

Most of those following this closely are doubtful it will pass the Senate where the government will need two crossbenchers to vote with them to get it through. Make that three-one government senator today said he would cross the floor to vote against.

 

I'd worry about any senators who see more secrecy as just what our democracy needs these days and suggest they should be tested for cognitive decline.

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):

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. 

What did cabinet consider on Medicare and contestability?

With Labor seeking to make the future of Medicare a central campaign issue, and the Prime Minister and other ministers adamant that Medicare will never be privatised, Freedom of Information is in the news.

The PM and others assert that "Cabinet has not considered outsourcing any part of Medicare services." 

While separately Sean Parnell and the Community and Public Service Union produce FOI decision notices refusing access to relevant documents regarding Medicare on the basis of the cabinet document exemption.

The decisions cite different sections of the exemption.

Parnell was denied access to parts of a letter from the Minister for Health to the Prime minister on the basis of S 34(1)(d) and s 34(3). 

Reasons given for the former claim are that parts of the document "contain information which is a draft of information ultimately included in a submission to Cabinet in relation to the payments contestability agenda," and for the latter, that disclosure would reveal "matters considered by Cabinet in relation to the payments contestability agenda."

Whatever was withheld-and none of us outside government know- the decision maker in the Department of Health confidently asserted it was information that had gone to cabinet or  if disclosed would reveal a cabinet deliberation or decision in relation to the contestability agenda.

The response to the CPSU request isn't evidence that something went to cabinet.

The decision maker cites (page 13-its a big document) S 34 (1)(a) in claiming exemption for some documents withheld which "were proposed to be submitted to cabinet" and were prepared for that dominant purpose, and S 34 (1)(c) in claiming others were brought into existence for the dominant purpose of" briefing the minister on a submission which is proposed to be submitted to cabinet." 

Now back to the politicians and who says what.....

NZ PM releases cabinet papers-not end of the world so far.

NZ Prime Minister Key released four Cabinet papers today.

No kidding.

They relate to decisions concerning the Government Communications Security Bureau which provides "information assurance and cyber security to the New Zealand Government and critical infrastructure organisations, foreign intelligence to government decision-makers, and cooperation and assistance to other New Zealand government agencies."

The release came in response to claims by Edward Snowden of mass surveillance of New Zealanders by the GCBE.

And tomorrow the sun will rise over the land of the long white cloud and the earth will continue to turn on its axis.

Contrary to the deeply held view in Canberra that release of anything giving the slightest hint of what is submitted to cabinet, or records a cabinet decision must be protected at all costs from disclosure for 28 years or so.

Even that isn't always long enough particularly if the subject is anything even vaguely connected to intelligence.

The documents do not disclose deliberation in the cabinet room, which we can all agree I expect, sensibly underpins the principle of collective responsibility and cabinet solidarity.

The Kiwis publish (admittedly selectively) cabinet documents as a matter of routine. So too do Queensland and the ACT (ditto and in summary form).

But it's end of the world stuff as far as Prime Minister and Cabinet and other guardians of the cabinet process are concerned.

Prime Minister Key demonstrates that excessive secrecy that surrounds the cabinet process here should be seriously questioned.

The NZ documents and the timeline is explained in the Media release as follows:
 
3 April 2012 - Cabinet Minute (PDF3) shows Cabinet asks for business case on cyber security protection initiative.
September 2012 - It becomes clear there are issues with the GCSB’s surveillance of Mr Dotcom.
After this Rebecca Kitteridge is called in, problems with the legal framework and internal issues in the GCSB are identified through reviews.
March 2013 - PM tells GCSB not to bring business case forward. Informs GCSB it is too broad. Budget contingency funding will be rolled over and used for something else in cyber security.
September 2013 – Cabinet Minute (PDF2) shows formal rescinding of request for business case and notice of new, narrower project. The business case had been known only as initiative 7418 through the Budget process because of its classification.
July 2014 - Cabinet agrees to Cortex, a narrower cyber security programme. (Cab paper and minute PDF 1 and PDF4)

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.