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):

Diary of a despondent: an FOI journey to nowhere (so far)

Almost a year ago the Minister for Foreign Affairs Senator Payne drew attention in speeches to two matters of significance in Australia's international affairs-an audit report completed by the Department of Foreign Affairs at the request of the Prime Minister on Australia's engagement with multilateral institutions, and what the Minister described as the important role Australia played since assuming a position on the governing board in advocating for greater independence and transparency at the World Health Organisation.

Hmm, important stuff, I thought.

FOI application  

Wanting to know more about both I made separate FOI applications for documents on 18 June to the Department of Foreign Affairs and Trade 

A year later after tortuous drawn out processes in both cases I've got nothing to show.

DFAT's decisions have been with the Office of Australian Information Commissioner since 13 November seeking review of the knock backs received as well as a response to a complaint about the department's handling of these, and presumably other FOI applications.

The blow by blow details are in the public domain on the Right to Know website here and here. 

Below is a potted summary of the pursuit of the Audit report-a tale of delay, long silences and obfuscation stretching from June to November.

It's a far cry from Parliament's intentions that the FOI act promote Australia's representative democracy by contributing towards increasing scrutiny, discussion, comment and review of the Government's activities, increasing recognition that information held by the Government is to be managed for public purposes, and is a national resource, and that functions and powers given by this Act are to be performed and exercised, as far as possible, to facilitate and promote public access to information, promptly and at the lowest reasonable cost.

18 June 2020

FOI application lodged for a copy of the audit report on Australia's engagement in key multilateral institutions mentioned and summarised in the speech by the Minister to the National Security College on 16 June.

24 June

DFAT acknowledgement (emphasis added here and elsewhere):

"Searches are now being undertaken in relevant areas of the Department for documents relevant to your request.""You should.. expect a decision from us by 20 July 2020. The period of 30 days may be extended in certain circumstances." "..the Department issues charges for processing FOI requests." It is the Department’s policy to withhold ... the names and contact details of government officials not in the Senior Executive Service (SES) If we don't hear from you "we will take it that you agree to that information being excluded from the scope of your request."

26 June

My response: Guidance from OAIC makes clear, the imposition of a charge is at the discretion of the agency. There is no obligation to charge. In the middle of a pandemic surely simple is better than complex. "In my submission, a charge for processing an application for one clearly identified document is not warranted." On names, the Department's policy is inconsistent with Guidance issued by the Australian Information Commissioner (6.154)
"When considering whether it would be unreasonable to disclose the names of public servants, there is no basis under the FOI Act for agencies to start from the position that the classification level of a departmental officer determines whether his or her name would be unreasonable to disclose."

7 July

DFAT makes no reference to either point raised and imposes a charge of $108.67 with the full amount or a deposit payable in advance.

9 July

My response notes no mention of matters raised on 26 June, and that the charges for processing the application are not broken down into how they will spend time in dealing with the application. Presumably little if any time is involved in searching for and identifying the one document requested.  

Still arguing DFAT has a discretion not to charge and why in difficult Pandemic times not charging is likely to save time and resources of both of us, I pick up on their mention of waiving or reducing charges on financial hardship or public interest grounds. As a self funded retiree my super and savings have taken a hammering I say, but no worse than many or most and I won’t make a special case out of that. On the public interest, what the Minister said in that speech that prompted the application made multilateral engagement a very important aspect of protecting and advancing Australia's interests. The minister said on 18 June it's about using "..Australian influence and agency to shape a safer world, and to make us safer at home."

Access to the report is in the public interest because it will help inform the community of the Government’s conduct of this important aspect of international affairs, contribute to debate on a matters of public importance, and enable scrutiny of performance in the achievement of government policies and goals. 

5 August

Nothing from DFAT.

I query what is going on?

11 August 

DFAT responds on charges, accepting 'this matter may be of some public interest. However I am not satisfied the giving of access to the specific document in question would be in the general public interest,nor of interest to a substantial section of the public." 

Followed by a lecture:"Charges are a vital component to the FOI process that make it sustainable and appropriately balanced from a public policy perspective. Significant public resources are engaged in processing non-personal FOI requests. Processing charges are designed to ensure that the Australian community recoups a proportion of the costs of processing these types of FOI requests, given that processing such requests diverts significant resources from policy areas away from other priorities."

But yes, DFAT reduces charges by 50% to $54.33.

18 August

My reply: "Gee, I'm sorely tempted to seek a review, given the reasoning provided, but in the interests of time, I'll pay up.Your message does not mention how to go about this. Nor does the website.Please inform.Thanks."

18 August

DFAT quick to respond: "Please see attached available payment methods."

19 August

Paid full amount rather than the $20 deposit by direct debit.

27 August

DFAT asks my consent to an extension of time of 30 days to process the request.  

Searches"have been undertaken.. material falling within the request is currently under consideration" but "the department will be unable to finalise the request within the statutory timeframe." 

No reasons given

28 August 

My reply:

"I understand its a difficult time all round but even in these trying circumstances, an additional 30 days to process the application seems unreasonable and unwarranted.You have had this application since 18 June-70 days, 50 if we are more generous than the FOI act and exclude weekends from the equation...The request is for access to one document, clearly described by title and publicly referred to in that way by the Minister, so it is reassuring that 'the searches in relation to the request have been undertaken"and that "the material falling within the request (ie one document) is currently under consideration." I can't see how this might render the request complex or voluminous. I'm hoping for a decision any day now. I do not agree to any extension."

31 August

DFAT advise they have asked OAIC for a thirty day extension.

15 September

My message to DFAT "Can you let me know where things stand? Nothing heard from OAIC about your application so I'm thinking an extension was not granted? Deemed refusal? Refund the charges paid?"

18 September 

OAIC write to tell me the DFAT application for extension of time has not been granted-"not satisfied an extension of time is appropriate in this circumstance... The effect of this decision is that the Department is deemed to have refused your FOI request...the Department continues to have an obligation to provide a statement of reasons on the FOI request...the agency or minister cannot impose a charge for providing access, even if the applicant was earlier notified that a charge was payable (regs 7(2), (3)). Any deposit you have paid should be refunded."

29 September

Nothing heard from DFAT but my follow up query met with a same day response 
"Thank you for your email and your continued patience.....complete the attached form for refund and return it at your earliest convenience. I otherwise confirm we are working to finalise this matter at the earliest opportunity."

My same day response to the response points out that the form says don't use it if you don't have an ABN. Instead use the “Statement by supplier form. I don't have an ABN. The link doesn't take me anywhere. A search turns up an ATO form and quite a few others. Phew-what a process."

1 October

DFAT "Apologies, statement by supplier form now attached."

2 October

Completed 'Statement by Supplier 'form sent together with a few comments to DFAT:

"Gee its hard to keep a straight face- and not weep- at the complications in the processing of the application that have arisen to date...I'm no expert on the GST, but how an FOI applicant entitled to get charges back transforms into a suppler providing a supply in the form of goods or services to your business (read explanation in Fact Sheet) is a real mystery... The form supplied can't easily be filled on line and comes without a way to automatically return it to you. I took a photo. (Please don't tell me you need the original-by snail mail!

DFAT reply same day, confirm receipt of the form and will now arrange refund of the charges.

"We otherwise confirm are working to finalise this matter at the earliest opportunity.Thank you for your continued patience."

16 October  

DFAT: "In order to process the refund, we need your bank account details to make the deposit. Grateful if you could please provide the same at your convenience and I will continue to process the refund. Again, my apologies that the processing of this refund is again delayed. I otherwise confirm we will provide you with an outcome to your request shortly

Details sent same day.

21 October 

Nothing from DFAT-my query, can you confirm receipt?

22 October 

DFAT-no we didn't receive bank details.

Same day, I resend. 

(Money paid into my account on 6 November)

5 November  

Nothing heard from DFAT- I say time to pass to OAIC for a review of the decision DFAT hasn't made 

6 November

DFAT reply:

"Unfortunately Danielle has been out of the office this week.We are continuing to work on your FOI request for you.

Regards

DFAT FOI Team"

13 November 

Still nothing from DFAT. 

My message:  

"I think I've shown understanding in difficult times but there are limits. An application for IC Review has been lodged today. And a heads up, I'll be lodging a complaint about the handling of the current two applications." 

30 November 

DFAT advise of decision on my application for the report after months of searching, considering..

The report is exempt in its entirety-cabinet document, release would damage international relations and national security. 

No reasons beyond broad general assertions. All conveyed in a tad over one page. Have to wonder what those months of 'consideration' of the application involved.

3 May 

The OAIC contacted me about the review application that I lodged on 13 November telling me the matter is awaiting further consideration by a review adviser and this may take up to 12 months and then the review adviser will review any documentation or submissions provided by Department in support of its decision of 30 November 2020.

.....................................

Intrigued by what this exercise might have cost the taxpayer, I made another application to DFAT on 7 December for the details of time spent and the dollar amount attributed to dealing with my request.

DFAT was at the ready for months arguing why i should pay for time spent so presumably someone somewhere was keeping tabs, but remarkably the agency says it does not hold any such documents.

.....................

Still living in hope!

Major parties respond with faint praise but nothing else to Senator Patrick's FOI reform bill

 In 2018 Senator Rex Patrick sponsored the introduction of the Freedom of Information Legislation Amendment (Improving Access and Transparency) Bill and made the second reading speech, the bill was referred to the Legal and Constitutional Affairs Legislation Committee, the Committee report recommended the Senate not pass the bill (Senator Patrick and Greens senators dissenting)......

And there the bill sat until last week when it came on for Senate debate for 70 minutes before time expired.

The major parties did not support the bill in 2018 and reaffirmed that in 2020, so its fate is clear. 

Senator Patrick managed to get an acknowledgement that the government respects the intent to 'make government more transparent and more accountable, to assist citizens and the media to access information under the law and to improve the effectiveness of Australia's freedom-of-information laws' and from Labor that the bill was "well intentioned, and many of the proposals it puts forward warrant close examination' , but that was as far as they went.

Among the remarks worth highlighting:

Senator Amanda Stoker (Queensland, Liberal Party)

The government remains steadfast in its support for transparency, for the value of the freedom-of-information arrangements and for providing substantial funding to the Office of the Australian Information Commissioner so that it can do its job of making sure Australians can access important information from governments.... the objectives of transparency, accountability and freedom of information are objectives that are highly valued and shared by this government.

(Spoken apparently with a straight face)

Senator Murray Watt (Queensland ALP)

This government hates scrutiny. This government has contempt for basic notions of accountability. This is a government that prefers to operate in the shadows. It is not difficult to see why, because, every time sunlight does find a way in, Australians do not like what they see. Whether it's sports rorts, Angus Taylor's latest outrage, the awarding of contracts worth hundreds of millions of dollars to companies headquartered in beach shacks or the government's shocking and scandalous record on aged care, the Morrison government does not want Australians to know what it is up to. Make no mistake: that is why the government hates our FOI laws and treats those laws with such contempt. That is also why the government continues to starve the Information Commissioner of resources—so that it takes the commissioner so long to review a rejected freedom-of-information request that the applicant just gives up.

....since this Liberal government took power in 2013, they have been at war with freedom of information, at war with transparency, at war with accountability to the Australian people, who elected them, so Senator Patrick is to be congratulated for bringing forward this bill, which demonstrates his belief that FOI laws need to be strengthened and in the need to undo some of the harm that the Morrison government has done to our democracy in its trashing of FOI and its obsession with secrecy and cover-up.

(Spoken without reference to the fact Labor has not put forward comprehensive, concrete reforms proposals during seven years in opposition.) 

Senator Larrisa Waters (Queensland Australian Greens)

...this is the least transparent government in history.

(Spoken ignoring the fact any government before 1982 when FOI was introduced would beat all since for the least transparent trophy.)

Senator Paul Scarr (Queensland Liberal Party)

...about resourcing. I think it's a key point, to be frank. It's absolutely a key point. If we are going to have an FOI Act regime, there needs to be appropriate resourcing provided for it. It doesn't matter who's in government; there needs to be that appropriate resourcing. When I read the report of the Legal and Constitutional Affairs Committee, page 9, paragraph 2.9 says: 

When asked whether there needed to be more resources at both the early resolution stage, as well as at a later stage, to enable more Information Commissioner reviews to be finalised earlier, Ms Falk stated:

'At this point in time, that's not what I'm seeing. I'm seeing that where I need to focus is on working with government to increase the offices resources to increase the capacity at the case-officer level and potentially, the executive level. If that were to be increased and then have a flow-on effect to more Information Commissioner reviews being required of the commissioner and that being something that's not manageable within other functions then that would be something that I would bring to the attention of government.'

Those are the actual words from the Information Commissioner in the report. In my respectful view, they do not support the characterisation of this matter by Senator Watt,

(Spoken in apparent ignorance of the fact that while the Information Commissioner did say this in 2018, she said something different in Senate Estimates in October 2019:

Senator KIM CARR: Did I hear you correctly in your opening statement? Did you actually say that you're under-funded?  

Ms Falk: I did raise the issue of resourcing in terms of FOI. It's a matter that's been discussed before this committee on a number of occasions, where I've indicated that really where the stresses in the system lie, from the OIC's perspective, are with the need for more staffing. I've set out the fact that we've had an 80 per cent increase in Information Commissioner reviews and I have worked very purposefully since being in the role on looking at how we can increase our efficiency. Over that same period of time—the four-year period—we have increased our efficiency by 45 per cent. But I've formed the view, having conducted a number of reviews of the way in which we're carrying out our work, that the only way in which the gap is to be bridged is for additional staffing resources to be provided

... 

Senator KIM CARR: I see. That's where the confusion lies. So, since August last year, you've been seeking additional support?  

Ms Falk: Sometime after that date, Senator. 

 Senator KIM CARR: And what was the government's response? Ms Falk: The government has acknowledged my request and is working through it in terms of normal budget processes.  

..

Senator KIM CARR: So how much did you ask for?  

Ms Falk: Senator, you appreciate that the information I've provided to government is through budget processes. I can give you an indication that, at present, my funding envelope allows for around 19 case officers to work on FOI reviews—there are additional staff who work on the FOI function more broadly—but just looking at FOI reviews, there'd need to be at least a half increase in the number of those staff.

 Senator KIM CARR: What you mean by 'a half? 

 Ms Falk: A half again. Senator KIM CARR: So—Ms Falk: Another nine staff. 

...

Senator KIM CARR: What will that cost in terms of your normal profile?

.. 

Senator KIM CARR: Can you take that on notice, please?  

The OAIC subsequently provided this response to the question: 

"The Office of the Australian Information Commissioner has estimated that the annual cost to fund nine (9) additional staff to undertake FOI regulatory work, including processing IC review applications, would be approximately A$1.65 million with an additional capital amount of approximately A$0.3 million for accommodation in the first year." 

.....

We live in hope....

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.