Wednesday, 16 June 2021
Statements by Senators
COVID-19: Freedom of Information
I would like to take this opportunity to update the Senate on matters relating to my legal appeal against Prime Morrison's attempt to apply cabinet secrecy to block scrutiny of the national cabinet decision-making on Australia's COVID-19 response. As some senators will be aware, I have appealed to the Administrative Appeals Tribunal against the decision by the Department of Prime Minister and Cabinet under the Freedom of Information Act 1984 to withhold from release minutes of the so-called national cabinet. The department, in accordance with the Prime Minister's assertion that national cabinet is part of the federal cabinet, has withheld the minutes of national cabinet on the grounds that they are cabinet documents that are entirely and unconditionally exempt from FOI release. The reasons behind that assertion were entirely political. Fearful that aspects of Australia's COVID-19 response would prove politically contentious, the Prime Minister wanted to cloak national decision-making in absolute secrecy. The Prime Minister did not ask the parliament to change the law. He just declared that national cabinet was to be part of the federal cabinet and, as such, exempt under the cabinet secrecy exemption of the FOI Act. Indeed, this is the basis of purported public interest immunity claims made to the Senate's COVID committee. The matter was deemed of such significance that it was heard by Federal Court Justice Richard White on 19 May. We are now awaiting His Honour's decision.
Senators should be aware that this is no run-of-the-mill AAT case. The issues that we argued before the tribunal go to the very heart of responsible cabinet government in Australia. At the centre of the proceedings is the Prime Minister's assertion, defended in sworn affidavits by senior officers of his department—most notably the Secretary of PM&C, Mr Phil Gaetjens—that the Prime Minister has absolute authority to determine the membership, structure and meetings of the cabinet without regard for long-established cabinet conventions and practices, because that is precisely what the Prime Minister has done in claiming that the national cabinet is part of the federal cabinet and consequently is covered by absolute secrecy exemptions under FOI laws.
National cabinet comprises a single Commonwealth minister, the Prime Minister; the premiers of the states; and the chief ministers of the territories. Unlike the federal cabinet or, for that matter, state cabinets, the national cabinet is not a meeting of ministers who are ministers of a single government and collectively responsible to a single parliament. All the conventions of cabinet government, of collective responsibility and confidentiality, revolve around the core concept that cabinet is a collective, a council, of ministers, who form a single government responsible to a single parliament. Cabinet is not mentioned in the Australian Constitution, and it's barely mentioned in legislation—indeed, only in the FOI Act and the Archives Act—but cabinet government is a political institution that predates our federation. It goes back to King George II. It has operated in accordance with well-established conventions throughout our life as a nation. Cabinet is a political mechanism that seeks to reconcile the individual responsibilities of ministers for the administration of their departments with their collective accountability to the parliament. A gathering of a body such as national cabinet, a meeting of federal, state and territory heads of government, is quite outside what has been understood to be a 'cabinet' for well over a century.
As the AAT proceedings showed, while national cabinet is nothing special as an intergovernmental body—arguably it is just the Council of Australian Governments by another name—it is without precedent that it is claimed to be part of the federal cabinet. The officers of the Prime Minister's department did try to claim some historical precedence, but they were obliged to concede in the hearing that their scholarship was quite incorrect. In the end, the government's defence of its claim was left resting solely on the assertion of the Prime Minister and his advisers. Those claims sound very much like the logic of Humpty Dumpty in Lewis Carroll's Through the Looking-Glass. In that wonderful, surreal classic, Humpty Dumpty declares, 'When I use a word, it means just what I choose it to mean, neither more nor less.' Alice replies, 'The question is whether you can make words mean so many different things.' Humpty Dumpty replies: 'The question is which is to be the master. That's all.'
That is the question here. The Prime Minister claims he is the absolute master, able to define cabinet government however he likes to suit his political purposes. Can the PM say that cabinet is whatever he wants it to be, or do the conventions that have for so long defined cabinet as a collective of ministers impose some fundamental restraint on the PM's political authority? Because if the PM's position is accepted—that he has absolute discretion to define the federal cabinet in any way he deems fit—a severe blow will have been dealt against the long-established conventions of responsible cabinet government in Australia. If it is accepted that he can deem a meeting at which just one federal minister is present, even if it is the Prime Minister, to be a cabinet meeting then it's open for the Prime Minister to declare any meeting with just about anyone as a cabinet meeting, shrouded in secrecy. Meetings between the PM and lobbyists or political donors could be deemed cabinet meetings. Such a state of affairs would unquestionably undermine our democratic parliamentary system.
It remains to be seen what Justice White will decide in this landmark case. There will also be the question of whether his decision, whichever way it goes, will be appealed to the full Federal Court or eventually even to the High Court. PM&C, in their submissions, foreshadowed such an event. Whatever the outcome, whether or not our 'Humpty Dumpty' PM is knocked off his pedestal, this has been and will continue to be an important fight for me. Freedom of information is absolutely critical for political transparency, accountability and the preservation of responsible government. It's about making sure that not just members and senators but also members of the public can participate in our democracy in an informed way. It provides them with a mechanism of oversight and scrutiny. It allows them to congratulate and to criticise. It's extremely important and, therefore, it's a battle that I will continue to fight, to protect the integrity of our democracy.
In conclusion, I would like to thank my legal representatives, senior counsel Geoffrey Watson and counsel Diana Tang, for assisting pro bono in this important transparency fight. Their finely honed arguments have been impressively effective in forensically demolishing claims made by the Prime Minister's representatives. They could have been doing other highly-paid work but they chose to weigh in and help me in this important battle to protect our system of responsible, democratic government. Many thanks again to Geoffrey and Diana.